Regina v Watkins [2000] NSWCCA 151

New South Wales Court of Criminal Appeal

CITATION : Regina v Watkins [2000] NSWCCA 151 revised - 11/09/2000 FILE NUMBER(S) : CCA 60844/99 HEARING DATE(S) : 03/05/2000 JUDGMENT DATE : 3 May 2000

PARTIES : Regina v Tracey Narelle Watkins JUDGMENT OF : Dunford J at 34,36; Foster AJA at 1-33; Smart AJ at 35

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0847 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : C K Maxwell QC for the Crown C B Craigie for the Respondent SOLICITORS : S E O'Connor for the Crown Peter Asha & Associates for the Respondent CATCHWORDS : Appeal against inadequacy of Sentence. - Knowingly taking part in manufacture and supply of a prohibited drug. - Monitored telephone calls and captured listening device conversations. LEGISLATION CITED : s 558 of the Crimes Act 1900 s 24(2) of the Drug Misuse & Trafficking Act 1985 DECISION : Refer Paragraphs 30-33

IN THE COURT OF CRIMINAL APPEAL No 60844/99 DUNFORD J FOSTER AJA SMART AJ

Wednesday, 3 May, 2000 REGINA -V- Tracey Narelle WATKINS JUDGMENT 1 FOSTER AJA: This is an appeal brought by the Crown in respect of two sentences pronounced by his Honour Judge Woods in the Sydney District Court on 5 November 1999. The respondent Tracey Narelle Watkins pleaded guilty before his Honour to one charge of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug and one charge of knowingly taking part in the supply of a commercial quantity of a prohibited drug. 2 In respect of the first charge, his Honour deferred sentence under s. 558 of the Crimes Act 1900 upon condition that she enter a recognisance, self in the sum of $1,000, to be of good behaviour for three years to date from 5 November 1999. 3 In respect of the second charge his Honour sentenced her to imprisonment for 18 months, consisting of a minimum term of 6 months with an additional term of 12 months, the sentence to date from 5 November 1999. 4 It is the contention of the Director of Public Prosecutions that each of these sentences is manifestly inadequate and should be varied by the order of this Court. 5 The first charge was brought under s. 24(2) of the Drug Misuse and Trafficking Act 1985 which carried a maximum penalty of life imprisonment having regard to the amount of drug involved. The drug was methylamphetamine. 6 The second charge was brought under s. 25(2) of the Drug Misuse and Trafficking Act 1985 and, having regard to the quantity of drug involved, carried a maximum penalty of 20 years imprisonment. The prohibited drug involved in this offence was ecstasy. 7 The dates of commission of the offences were, in respect of the first charge, between 21 May 1997 and 30 September 1997 and, in respect of the second charge, between 11 December 1996 and 30 August 1997. 8 The respondent had had prior convictions, namely one for stealing on 11 October 1989, in respect to which a s. 556A recognisance had been imposed; larceny on 17 April 1991 in respect of which a s. 558 recognisance had been imposed; and possession of prohibited drug and goods in custody on 16 June 1993, in respect of which she had been fined $200 and had received another s. 558 recognisance. 9 There was a fairly lengthy hearing before his Honour because the respondent, although having pleaded guilty at the earliest opportunity, asserted that she had had only a minor role in the commission of the offences and that there were significant subjective factors which should be taken into account in her favour. There was a dispute as to her level of involvement, which necessitated that his Honour receive evidence and make findings in this area. 10 The respondent was born on 20 July 1969 and was aged 30 at the date of the pleas and sentences. 11 His Honour was assisted by a pre-sentence report from the Department of Corrective Services Probation and Parole Service. This provided information that the respondent had come from a reasonably advantaged background. However, she left her family home at 18 years of age and began to live with Dennis Watkins, whom she subsequently married and with whom she had a daughter, now aged 9. Dennis Watkins was described in the report, quite accurately it would seem as a "career criminal". He has an extensive criminal record, including significant crimes of violence. Despite incidents of domestic violence the respondent remained with her husband who, it may be noted, was 29 years older than she. The Probation Report indicated that the respondent "has yet to take full responsibility for her actions as she attributes blame for her offences on her husband. Given the family involvement in these offences, it would appear that Ms Watkins is deeply entrenched in the criminal element. Her ability, and/or willingness to extricate herself from this situation remains in doubt". The report also indicated that "overall, Ms Watkins sees herself as a victim". 12 The facts relied upon by the Crown were placed before his Honour in written form in a document entitled "Fact Sheet". In relation to the first charge the nature of the operation in which the respondent was involved was described in the following terms: "An investigation comprising of lawfully obtained listening devices, telephone intercept material, physical and video surveillance and forensic chemistry provided evidence that between the 23rd May, 1997 and 16 July, 1997 the prisoner together with Leslie Kalache, Lyndon Marskell, Dennis Watkins, Keith Bonney, Debra Watkins and others, conspired to manufacture a prohibited drug, methylamphetamine. The prisoner took active steps by assisting in the supply of a large quantity of sudafed tablets and associated generic brands. A large quantity of tablets (in excess of 17,000 tablets) were purchased in bulk by Dennis Watkins from a co-offender, Pharmacist John Cheng. Such a quantity would yield 4.735 kg of the prohibited substance pseudoephedrine hydrochloride (CHI). The prisoner then took part in removing these tablets from their packaging with her sister Debra Watson and husband. The tablets were later given to Kalache who supplied them to co-offender, Lyndon Marskell. Marskell and co-offender Mehmet Arikan then transported these items to a property, Lot 9 washpool Creek Road, Booral, owned by Marskell. Marskell assisted by Arikan, then set up a clandestine drug laboratory used to extract the active ingredient pseudoephedrine CHI from the tablets and then carry out a reduction reaction to convert this compound to the prohibited drug, methylamphetamine." 13 It was also indicted that, between 20 June 1997 and 16 July 1997, monitored telephone calls and captured listening device conversations implicated the respondent in the offence. Transcripts of conversations were supplied with the Facts Sheet and relevant tapes were supplied to his Honour. One such conversation dealt with the prices of various sizes of Sudafed packets and involved the respondent and her husband making calculations as to the cost of 430 boxes of such packets. Another conversation refers to the removal of the Sudafed tablets from their packets which involved an audible popping noise. Another conversation involved the respondent making arrangements with a man called Parker for her to take some of the tablets over to his house so that he could assist in their "popping". Another referred to arrangements to be made in respect of the Sudafed tablets and the amount of work that was involved in removing them from their packages. 14 In relation to the second charge, the following summary was provided: "An analysis of lawfully obtained listening device and telephone intercept material provide evidence that the prisoner together with Leslie Kalache, Dennis Watkins, Tracie Watkins, Keith Bonney and others, conspiring to supply a prohibited drug, methylendioxymethylamphetamine, commonly known as 'Ecstasy'. The prisoner knowingly took part in arranging, purchasing and supplying the drug in tablet form. Watson arranged and received ecstasy tablets. The prisoner makes reference in recorded conversations to the price and description of ecstasy tablets. The prisoner also arranged to be supplied with '50' from Dennis Watkins." 15 Various monitored telephone conversations were also referred to and transcripts provided. 16 The respondent gave evidence before his Honour. Apart from subjective matters, to which reference will be made later, she sought to explain material appearing on the tapes and generally asserted that she had only a low level of involvement in the criminal activity, the subject of the first count, and that her involvement in relation to the supply of ecstasy tablets was motivated by desire on her part that her sister who was, apparently, a heavy user, should receive a good quality of drug. She was cross-examined on behalf of the Crown on the basis that she was deliberately down-playing her role in the criminal activity and incorrectly seeking to cast the preponderance of blame on her husband. 17 Accordingly, his Honour had significantly contested issues of fact to decide before he could determine the appropriate level of sentence to be imposed in respect of each of the charges. 18 In his judgment on sentence, his Honour referred to the fact that the husband, Dennis Watkins, had recently been sentenced on charges relating to the same events. He had met the co-offender Kalache when in gaol on a previous occasion and that Kalache was "involved in a large scale exercise of manufacturing methylamphetamine". He did so with Marskell, Bonney and Dennis Watkins. As part of the scheme a pharmacist, who lived across the road from the Watkins home, supplied bulk boxes of Sudafed from which the individual tablets were required to be extracted before they could be used in the illegal manufacturing operation. 19 His Honour referred to the monitoring devices having recorded the sound of popping noises made by the extraction of the tablets from their containers. The relevant tape indicated that the respondent and her husband and sister were in the house at the time. In relation to this recorded episode his Honour made the following finding: "I accept Tracey Watkins evidence that she was sick with influenza at this time and that she actually opened only one small packet of the tablets - nonetheless she was closely involved in the exercise and knew it was happening in her house." 20 His Honour made the following finding: "The offender's involvement is reflected in a conversation she had with David Parker on 26 June 1997, an associate of Kalache and a conversation on 12 July 1997 with her sister in which payment for sudafed is discussed. Associates of Kalache actually did use the sudafed to produce a substantial quantity of methylamphetamine in an amount not less than the large commercial quantity for such drug, but that chemical operation as such involved no input from Tracey Watkins. Her only knowing participation in the exercise was in taking part in the arrangement for the sudafed tablets and in actually removing a small number of them from a packet. Tracey Watkins involvement in this offence was minor when compared with that of her husband." 21 In relation to the second charge, that of supplying ecstasy tablets, his Honour made extensive reference to the evidence in his judgment. He found that the respondent supplied her sister, Debra, described as "a party girl" who personally used ecstasy tablets, with tablets to be used by her and her group of girl friends who went with her to her parties. His Honour said: "However there is no evidence that Tracey took part in the supply of ecstasy tablets to anyone other than her sister in the manner indicated. One may have a suspicion that her role was wider than that to which she admits. She unconvincingly said in evidence that she did not know that her sister was selling ecstasy but she did qualify that by saying that she knew her sister was supplying the tablets to her friends who accompanied her to the dance parties." 22 His Honour referred to the fact that the Crown's estimate in the Facts Sheet was that the respondent had been involved in the purchase and supply of not less than 2,500 such tablets. The respondent disputed this figure. His Honour found that there was no doubt that the respondent had supplied something like 300 tablets to her sister. He said: "The figure may be in truth larger, in the thousands, but while I may suspect this I am not satisfied of it to the required standard of proof beyond reasonable doubt." 23 Later in his judgment his Honour said that he did not find the respondent's evidence about the ecstasy tablets very convincing. He said: "It seems to me that she has set out to play down the level of knowledge which she had on this subject. I have no doubt that she knew at all relevant times that her sister, Debra, was supplying and indeed selling ecstasy tablets to a range of her friends with whom she visited at dance parties. I have my suspicions that Tracey's involvement in the ecstasy business may have been more extensive than I have found but, as I have said, the relevant standard of proof is proof beyond reasonable doubt and suspicion cannot be the basis for a sentence." 24 His Honour considered the relationship between the respondent and her husband. He said that he found the respondent's evidence about the relationship persuasive and that he accepted it. He said "I have no doubt that at all relevant times she was dominated by him and his wishes." He was, however, satisfied that she had not been coerced into committing the offences. However he was satisfied that there was a relevant pattern of marital intimidation which placed the respondent in a situation of vulnerability, especially having regard to her commitment to her child. There was strong pressure upon her to accommodate the situation of criminal behaviour in the marriage which, although not freeing her from blame placed her criminality at the lower end of the scale. 25 His Honour also took into account, in her favour, the respondent's commendable conduct in relation to good works done in the community and in particular her thoughtful care of a friend suffering from multiple sclerosis. He was also impressed by evidence which indicated that she was a most caring mother and housewife. 26 In relation to the first offence, he found her role to be relatively minor and, consequently, placed her on the good behaviour bond referred to. 27 In relation to the offence of supplying ecstasy tablets he found she was nowhere near as blameworthy as her husband and regarded it as appropriate that she receive the same punishment as, apparently, had been given to her sister. He took into account, as special circumstances, the problems associated with the care of the child. 28 As I understand the written submissions of the Crown in support of this appeal, no attack is made upon his Honour's findings of fact. It is the Crown's contention, however, that, given those findings, the sentences were manifestly inadequate. 29 In relation to the first offence, I think it quite clear that his Honour was not restricting the level of the respondent's criminal activity to a mere participation in the removal of a small number of Sudafed tablets from their packages on the particular occasion when the tape recording was made of the event. He makes this plain when he found that she was closely involved in the exercise and knew it was happening in her house. He was also satisfied that she took part in the arrangement for the obtaining of the Sudafed tablets. Although, having regard to the marital situation and her vulnerable position, it may have been reasonable to regard her criminality as being significantly less than that of her husband. I feel, however, with due respect to his Honour, that this was nevertheless a situation requiring greater punishment than the imposition of a good behaviour bond. This was especially so, having regard to the extremely serious nature of the offence in question. 30 I would therefore propose that the present sentence be set aside and that there be a re-sentencing, in which regard should be paid to the mitigating features taken into account by his Honour as well as an appropriate recognition of double jeopardy. Also the finding of special circumstances should stand. There is also a significant question of parity involved. Dennis Watkins, in respect of the same offences, received in total a minimum term of three years and an additional term of two and a half years. In these circumstances I would propose that the respondent be sentenced to imprisonment for two and a half years comprising a minimum term of one year and an additional term of eighteen months, the commencing date to remain unchanged 31 In relation to the second offence, I am of the view that, except in one respect, the appeal should be dismissed. One may well share his Honour's suspicions, but his Honour had the advantage of seeing and hearing the respondent. He was not satisfied beyond reasonable doubt that the ambit of the offence was wider than he found. In these circumstances, and having regard to the totality principle, I would propose that the present the present sentence simply be varied to one of a fixed term of six months to be served concurrently with the one proposed for the first offence. In the result, I propose the following orders: