R v Vaitaiki [2018] NSWDC 462

District Court New South Wales

Medium Neutral Citation: R v Vaitaiki [2018] NSWDC 462 Hearing dates: 28 November 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Aggregate term of imprisonment of 2 years, 3 months with a non-parole period of 1 year, 6 months: at [17] Catchwords: SENTENCING – multiple offences – knowingly take part in the supply of a prohibited drug – supply prohibited drug – involvement and circumstances distinguished from co-offenders – guilty plea – criminal history does not entitle offender to leniency – special circumstances Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: R v Henry (1999) 46 NSWLR 346 Wat v R [2017] NSWCCA 62 Texts Cited: None Category: Sentence Parties: Regina (Crown)

William Vaitaiki (Offender) Representation: Ms Anderson (Crown)

Ms Alderton (Counsel for the offender) File Number(s): 2016/373141

Judgment 1. William Luke Vaitaiki was born in August 1983 and appears for sentence having pleaded guilty to one count of knowingly take part in supply of prohibited drug being 54 grams of methylamphetamine and another of supply 30.65 grams of methylamphetamine under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) which both carry maximum penalties of 15 years' imprisonment with no standard non-parole period. 2. He was loosely associated with two Vietnamese gentlemen, Johnny Ly and Thai Nguyen, who I have previously sentence but their roles, the backgrounds and subjective circumstances in these cases are so disparate as to make questions of parity of little relevance. Ms Alderton of counsel for Mr Vaitaiki, has correctly pointed to the numerous differentiating factors which mean that the sentence of eight years with a five year non-parole period that I imposed on Mr Nguyen as against the intensive corrections order of two years that Mr Ly received recently in the light of his very significant rehabilitation are of little relevance to this sentencing exercise. 3. Mr Nguyen, of course, was someone whose drug dealing was of such significance that a police strike force was established in April 2016, to investigate the supply of methyamphetamine and it was into that circle Mr Vaitaiki was drawn. In May 2016, he was utilising a mobile phone service in a fictitious name. A listening device captured conversations between Nguyen and Vaitaiki and there were six transactions identified where Vaitaiki supplied or intended to supply methyamphetamine. The details are set out in the agreed facts and need not be repeated here. 4. The second count relates to activities in September 2016 when Johnny Ly's motorcycle broke down and, because he was unable to deliver some material to Nguyen, Vaitaiki was arranged as the delivery man. Vaitaiki was not arrested until July 2017. He initially denied his involvement but when he had the telephone intercepts played to him, he declined to make any further comment. 5. He did say that he was using cannabis and 7 – 8 grams of ice per day despite being unemployed. He said he was not doing it for financial gain; he was just going through a phase. He said that he was going out every day doing stupid things and hustling and bustling for a smoke. 6. His record does not do him any favours; it does not entitle him to leniency. He served a number of terms of imprisonment, none of which have been for drug related offences. There was five years with a two and a half year non-parole period in 2000 for aggravated robbery with wounding and two years and three months for demand money with menaces in 2011. In 2012 there was a 12 months fixed sentence for stealing and assault occasioning. 7. His record in custody since he was arrested on 16 September has not been glowing and there have been a number of adverse matters in relation to fighting, possessing drugs, failing prohibited drug tests and disobeying directions. 8. The evidence for the offender comprises a lengthy report of a psychologist, Miriam Wyzenbeek and a further report of Anthony Diment, psychologist. The contents of those reports have been accurately summarised in some very comprehensive written submissions prepared by Ms Alderton. A significant factor in his history is that in June 2016 he was attacked and stabbed in his back and in the back of his head leading to a collapsed lung and extensive rehabilitation. That was unrelated to his drug supply activities and drug supply involvement, according to the evidence. 9. His partner gave evidence today. They have been in a relationship for some years. She visits him weekly. She is undertaking tertiary studies and professes to be able to look after him on his ultimate release, whenever that may be and she expresses hope for the future that he has partially dealt with any drug problems that he has had in the past. 10. Looking at the objective seriousness of the case though, as Ms Alderton submits, he was involved at the fairly low end of the scale and his conduct was clearly distinguishable from the other two gentlemen and there is no evidence of specific profit from any transaction. The amounts supplied have been referred to and he was, on the evidence, responding to Nguyen's directions and instructions, so he was effectively a go-between or street dealer although probably, as the Crown submits, more accurately described as a user dealer. 11. Ms Alderton correctly addresses the aggravating factor that this was part of planned or organised criminal activity but not necessarily sophisticated, meticulous or with military style precision as the Court described another operation in Wat v R [2017] NSWCCA 62. They used rudimentary code that was easily detectable by police so the level of aggravation due to that factor is minimal. 12. Although there is no specific evidence of financial gain, there is a common sense inference, in the absence of evidence to the contrary, that this type of involvement was committed for financial gain but, again, the level of aggravation is minimal. 13. The factors which distinguish Nguyen and Ly from Mr Vaitaiki include that Nguyen was facing a number of more serious counts which carried maximum penalties of 20 years. In one case, Nguyen was a co-ordinator and he was also discovered with weapons, large quantities of cash and drugs. He was also sentenced for a number of matters on a Form 1 and he was on conditional liberty at the time. Ly was also discovered with weapons, a significant quantity of cash and drugs and a sophisticated CCTV system. Ly also had some Form 1 matters taken into account. 14. Turning to the subjective case, the history that is unchallenged is of family domestic violence; early drug use and negative peer influences. He has had regular employment while he has been in the community and his prospects of rehabilitation are reasonable. His drug addiction from a very young age is a factor to be taken into account as Simpson J said in R v Henry (1999) 46 NSWLR 346 and he does have some positive support in the community from his partner and from members of his church. 15. The Crown does not challenge the proposition that a finding of special circumstances leading to a modest reduction in the statutory period might be made due to his need for extended supervision to address his drug addiction, for further treatment in relation to the injuries related to the assaults, and to assist in his reintegration. 16. The mitigating factors are the plea of guilty and the limited expressions of remorse to which reference is made in the reports. I note, but do not take account of, the agreement from the bar table that he is currently in custody not only on this matter but he is bail refused in relation to another matter which is listed for trial in February next year. 17. The orders that I make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 2 years, 3 months, to commence on 16 July 2017 and expiring on 15 October 2019. 3. I impose a non-parole period of 1 year, 6 months, expiring on 15 January 2018. The offender is eligible for release to parole on that date. 4. Indicative sentences: 1. Knowingly take part in supply of prohibited drug (001) – 20 months; 2. Supply prohibited drug (004) – 18 months. 1. I find special circumstances. 2. Sequences 002 & 003 are withdrawn. 3. The application for confiscation is refused. Note – These ex-tempore remarks were revised without access to the court file