R v Matthew John Wilson [2002] ACTSC 14 (7 March 2002)

Last Updated: 12 April 2002

R v Matthew John Wilson [2002] ACTSC 14 (7 March 2002)

CATCHWORDS

CRIMINAL LAW AND PROCEDURE - prohibition of publication of evidence - power to exclude public from courtroom - whether power can arise before order prohibiting publication - Evidence Act 1971 s 83 - whether practice of prohibiting publication of identity of informers extends to all evidence of all persons who give useful information to police.

SENTENCING - trafficking in amphetamines - whether Court entitled to recognise link between amphetamine trafficking and organised crime and violence - trafficking in MDA - whether Court entitled to have regard to harmful effect of drug without pharmacological evidence.

Evidence Act 1971, s 83

Drugs of Dependence Act 1989, s 164

Crimes Act 1900

XZ v R [2000] FCA 1143

Jacobs v The Queen [2001] FCA 1192

No. SCC 205 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 7 March 2002

IN THE SUPREME COURT OF THE )

) No. SCC 205 of 2001

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

MATTHEW JOHN WILSON

ORDER

Judge: Miles CJ

Date: 7 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. On the charge of possession of methamphetamine for sale or supply, the offender be sentenced to three years' imprisonment.

2. On the charge of possession of MDA, the offender be sentenced to one year imprisonment concurrent.

3. Non-parole period of one year to commence from 7 March 2002 and to expire on 6 March 2003.

4. There be a forfeiture order in relation to the money found on the premises.

THE COURT DIRECTS THAT:

1. The papers be marked "Prisoner at risk to himself and generally".

1. HIS HONOUR: Before sentencing proceeds there is a preliminary matter about which I need to say something.

2. Yesterday when Matthew John Wilson was called for sentence, Mr Sabharwal made an application for an adjournment on the ground that further time was needed to prepare the case.

3. Although the prosecution did not oppose that application, I refused it, bearing in mind that Mr Wilson had pleaded guilty before a Magistrate and was committed to this Court as long ago as 7 December 2001, and the matter had been the subject of a callover before the hearing date was fixed. Therefore the case proceeded, and Matthew John Wilson continued his plea of guilty in this Court.

4. At the conclusion of the prosecution case Mr Sabharwal indicated that he wished to call evidence from a Sergeant Thrift, but that the evidence of that witness would be so sensitive that the public should be excluded from the courtroom when it was given.

5. At that stage I did not understand what the evidence would be. I ordered members of the public from the courtroom in order to understand what the evidence might be and I then took the evidence of the witness in-camera, that is to say in the absence of the public.

6. It became clear enough that the concern of Mr Sabharwal was well justified, having regard especially to the decision of the Full Court of the Federal Court in the case XZ v R [2000] FCA 1143 given on 15 August 2000.

7. Although the offender is not an informer in the sense used in the reported cases which are said to establish a principle at common law, the effect of the Full Court decision, as I understand it, is to treat any person who gives useful information to the police as if that person were an informer.

8. However, it has become clear in the meantime that I had no power to exclude the public and take the evidence in-camera.

9. Section 83(1) of the Evidence Act 1971 permits the Court to make an order forbidding the publication of evidence in the interests of the administration of justice. Section 83(2) provides that where a court makes an order under sub-s (1) the court may, if it thinks fit, also direct that all or specified persons remain outside the courtroom for such period as the court specifies.

10. However, it is not until the order prohibiting publication is made that the power arises to exclude the public or any member of it. Where the court does not know what the evidence is, or will be, as in the present case, it is difficult to see how an order under sub-s (1) could be made, yet until such an order is made the power to exclude persons does not arise. I commend this matter to the attention of the legislature, and of the Law Reform Commission of the Territory.

11. The problem I have just identified was sought to be resolved by my making an order that a transcript be taken out of what the witness said, and marking that as an exhibit. Counsel had no objection to that course. The transcript is now available and I propose to mark it as an exhibit. Do counsel want to see it?

12. MR LUNDY: No, your Honour.

13. MR SABHARWAL: No, your Honour.

14. HIS HONOUR: The transcript is Exhibit 4. I make an order forbidding publication of Exhibit 4, except by leave of a judge which may be given in chambers. I turn now to the sentencing process.

15. The charges to which Matthew John Wilson pleaded guilty were one charge of possessing a traffickable quantity of a drug of dependence, namely methamphetamine, for the purpose of sale or supply contrary to section 164(2)(c) of the Drugs of Dependence Act 1989, and a further charge of possessing a traffickable quantity of a prohibited substance, contrary to section 164(3)(c) of the Act. The prohibited substance in question is sufficiently identified in the information, but its full name or description as set out in the relevant regulation under the Act is 3-4-methalenedioxymethamphetamine-MDA. I will refer to it as MDA.

16. Both offences were committed on 28 September 2001, and each carries a maximum sentence of 25 years imprisonment.

17. The facts necessary to support the charges are simple. On the date mentioned police executing a search warrant entered a house occupied solely by the offender and found the drugs in question on those premises. The amount of methamphetamine was 84.7 grams, contained in a mixture of 306 grams. The amount of MDA was 0.73 grams. The evidence does not disclose whether it was in a mixture.

18. The traffickable quantity prescribed by the regulations is 2 grams for methamphetamine, and 0.5 grams for MDA. So the offender had over 40 times the traffickable quantity prescribed for the former, but less than twice the quantity prescribed for the latter.

19. In addition to those drugs a large number of other items were found on the premises in incriminating circumstances and, as a result, I will take into account under the Sixth Schedule to the Crimes Act 1900 a number of other offences, as the offender has requested. They are, and I put them in a summary form, possession for supply of cannabis and of cocaine, possession of an anabolic steroid and of cannabis oil, two offences of possession of an unlicensed firearm, possession of a prohibited weapon, possession of property reasonably suspected of having been stolen, possession of explosives in the form of fireworks, and possession of the proceeds of crime.

20. With regard to the last of those offences, I note that some of the drugs were found in a bag which also contained $930 in cash and clip seal bags, obviously intended for the purpose of distribution of the drugs. I was not told of the value of the goods suspected of being stolen, but there was a large number of them and they ranged in nature from a motorcycle through items of electronic equipment and electrical hand tools, to computer games and pornographic videos.

21. The offender declined at the time of his arrest to speak to police officers. He subsequently told a probation and parole officer, whose report is in evidence, that he had been using illicit drugs for some years, and in the most recent of them had been supplied with more than he could use in the expectation of the supplier that he would sell the drugs on, and thus reduce his indebtedness to his supplier. At the time of his arrest he was using amphetamines daily. He was, as experience in this Court indicates, in a hopeless situation, and it was only a matter of time before he was caught.

22. The offender is 27 years of age with no previous relevant convictions. He was raised in a supportive and law-abiding family. He was educated in Canberra, but does not appear to have used his talents wisely. He repeated year 12 and then went into his father's business. He suffered a back injury whilst thus engaged and is to some extent disabled. Action taken for workers' compensation or damages created tension between his father and himself.

23. He finished up with a lump sum settlement of $200,000 for his injury. He invested the proceeds and receives about $18,000 a year from his investment. It was from that investment, as I understand it, and whatever he might have made on the way by onselling the drugs, that he managed to pay for what he got to the extent that he paid for it. The house in which he lived and which was the subject of the search was owned by his parents, and he occupied it rent free.

24. The offender told the probation and parole officer that he began using amphetamines to relieve the pain from his injury, and also to relieve depression. He had been treated for depression from about April 1998, and he continues on antidepressant medication even now. He did not tell his doctor that he was using amphetamines until after his arrest. At about the same time he sought assistance for his drug dependence from Directions ACT, which, I gather, is the operating name of Assisting Drug Dependants Inc, itself a descendent of a body called Drug Referral Information Centre, an instrumentality of the ACT Department of Health.

25. A counsellor of that organisation describes him as an exemplary client, and extremely remorseful. He has attended Directions ACT weekly sessions, and received counselling, over what period is not clear. Since then he has successfully completed a university entrance test and has been accepted for a degree in applied psychology. I understand that he is back living with his parents and since then he has not taken any illicit drugs.

26. A large number of written references have come from people who attest to what they believe is the offender's good character. His mother gave evidence, which I accept, of various matters which go partly to reduced culpability, and partly to point to the likelihood of rehabilitation if a proper regime can be established to that end, which I believe it has been. The evidence also indicates that the family has suffered in various ways as a result not so much of the offences, but as a result indirectly of their detection.

27. The mother's evidence also goes to cast doubt on the proposition urged on behalf of the prosecution that the house was set up as a veritable supermarket for drugs. Notwithstanding that overstatement, as I have already indicated, there certainly was a large number of items apparently stolen, as well as a large variety of drugs, on the premises.

28. Notwithstanding that the overall circumstances show beyond doubt that the offender was well entrenched in the drug distribution subculture in Canberra, it is important to bear in mind that experience in this Court indicates clearly that there is a division between the distribution of heroin, and the distribution of amphetamines and amphetamine-related drugs in this Territory. The former appears to be controlled by interests outside Canberra, and the latter is the subject of struggle for control by rival groups, some in Canberra, some from elsewhere. That struggle has led to violent crime.

29. It is well known that heroin has to be brought into Canberra, but perhaps not as well known that amphetamines can be manufactured cheaply and simply, and as easily in Canberra as elsewhere. It does not appear that what might be increasing community tolerance of the use of heroin extends to the use of amphetamines, let alone trafficking. I bear in mind what a Full Court of the Federal Court said in the recent case of Jacobs v The Queen [2001] FCA 1192 (29 August 2001), where the Court appeared to be critical about the taking into account by a sentencing judge of links between drug trafficking and organised violent crime, the incidence of illegal drug use, and the effect of the use of illegal drugs, unless such matters are based on pharmacological or medical evidence, or crime statistics received into evidence in the sentencing proceedings.

30. Accordingly, insofar as the second offence involves the possession of the drug identified as MDA, which, according to counsel for the prosecution, is commonly known as Ecstasy, I refrain from making any finding as to its harmful qualities without pharmacological evidence. However most people would think the fact that it is a prohibited substance, rather than just a drug of dependence which may be prescribed by a medical practitioner, and the further facts that the traffickable quantity is itself only half a gram, and that the maximum sentence is 25 years' imprisonment, provide a pretty good guide.

31. In any event, experience in this Court, and from what one can see, in the Magistrates Court, is such that it would be flying in the face of reality, and of that common sense which the courts have always recognised, if not defined, if I were to ignore these factors. An evaluation of the seriousness cannot be made properly without looking at the facts of the offences in the wider circumstances in which they have been committed.

32. I also bear in mind, as the Federal Court reminds us, that homilies and extravagant language on the part of a sentencing judge are to be avoided, and any alliteration indeed should be struck out of any draft of sentencing remarks. However, plain speaking is not out of place. The seriousness of the offences charged in this case is aggravated substantially by the surrounding circumstances which are reflected in the matters to be taken into account on the Schedule. The impact of the organised distribution of amphetamines in this Territory indeed is the very matter which the offender, through his counsel and through his mother, asks me to take into account.

33. I do take into account, and I repeat unless anybody thinks that that is simply an empty formula, I do take into account all the matters set out in the renumbered s 342 of the Crimes Act. The transcript will show that I discussed some of them with counsel. But I wish to say in general terms only, if there is any validity at all in the concept of general deterrence, this is a case in which it should be recognised and applied. On the other hand, the subjective factors in the case call for considerable reduction in what would otherwise be a lengthy sentence.

34. Mr Sabharwal has submitted that a non-custodial sentence might be appropriate if in the form of periodic detention, but I do not think that would sufficiently mark the seriousness of the offences. The subjective factors will go to be reflected in the length of a non-parole period.

35. Stand, Matthew John Wilson. On the charge of possession of methamphetamine for sale or supply, you are sentenced to three years' imprisonment. On the charge of possession of MDA for possession and supply you are sentenced to one year imprisonment concurrent. I fix a non-parole period of one year to commence today, that is to expire on 6 March 2003. I direct that the papers be marked "Prisoner at risk to himself and generally", and I make a forfeiture order in relation to the money found on the premises.

36. MR LUNDY: May it please the Court.

37. HIS HONOUR: I have to tell you, without, as I say, wanting to engage in a homily, that is a sentence of three years but you can be released after one year if you behave yourself in prison. You would be released on parole. And for the remaining two years you would have to make sure you keep out of trouble. If you get into trouble again your parole would stand to be revoked and you may have to serve the remaining two years together with any other sentence that might be imposed for any further offence.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Remarks on Sentence herein of his Honour, Chief Justice Miles.

Associate:

Date: 7 March 2002

Counsel for the Prosecution: Mr J Lundy

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr J Sabharwal

Solicitor for the Defence: Gary Robb & Associates

Dates of hearing: 6 and 7 March 2002

Date of sentence: 7 March 2002