Citation: R v Watson-Wood, Daniel [2017] NSWDC 410
Court: District Court of New South Wales
Date: 22 May 2017
Judge: King SC DCJ
Background
The offender was convicted by jury of supplying MDMA (3,4-methylenedioxymethylamphetamine) at Tamarama on 12 December 2014. Police found 12.32 grams of MDMA in his bedroom wardrobe, along with two small bags of cocaine. He asked the court to deal with two associated cocaine possession charges on a "take into account" basis at sentencing.
The Crown's case rested on both the statutory deeming provision under the Drug Misuse and Trafficking Act 1985 and circumstantial evidence of supply: significant unexplained cash deposits into the offender's bank account, a lifestyle inconsistent with his declared income from casual hospitality work, and the presence of 32 PGP-encrypted BlackBerry mobile phones in his bedroom. PGP ("Pretty Good Privacy") encryption renders data transmitted between devices unreadable to intercepting authorities.
The offender's explanation was that the MDMA had been given to him free by a dealer as a sample of poor-quality product, which he intended to dispose of but had not yet done. He also argued that the cash deposits reflected income from a legitimate business selling encrypted BlackBerry phones, rather than proceeds from drug dealing.
Legal Issues
- Whether the offence of supply under s 25(1) of the Drug Misuse and Trafficking Act 1985 was established, given the offender's explanation for possessing 12.32 grams of MDMA.
- What weight to give the Crown's circumstantial evidence of supply, including unexplained wealth and possession of 32 PGP-encrypted phones.
- What sentence was appropriate having regard to the objective seriousness of the offence and the offender's subjective circumstances, including mental health considerations.
- Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to total sentence.
Decision
The jury returned a guilty verdict on the MDMA supply charge. His Honour King SC DCJ proceeded to sentencing on that conviction together with the two cocaine possession matters. The judge accepted that the expert evidence connecting the 12.32 grams of MDMA (at 54.5% purity) to approximately 100 individual capsules was relevant to the objective seriousness of the offence.
The court considered the role of the 32 PGP-encrypted BlackBerry phones from two perspectives: as an indicia of supply advanced by the Crown, and as the offender's own explanation for otherwise unexplained cash deposits. His Honour noted that the phones were consistent with two possibilities: supply to drug contacts or sale to others involved in organised crime. The court observed that the offender had imported the phones under a friend's name without that friend's consent, and had impersonated that person to DHL. No other conventional indicia of supply, such as scales or small bags, were located.
On the question of sentence, His Honour found special circumstances under the Crimes (Sentencing Procedure) Act 1999, warranting a reduction in the non-parole period relative to the total term. The purpose was to allow a more substantial period of supervised parole to assist the offender in addressing his drug use. A psychiatric report from Dr Adams, which indicated the offender's emotional state was likely to deteriorate in custody, was ordered to be provided to prison authorities on his entry into custody.
Orders Made
- Convicted of supplying MDMA contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.
- Convicted of two charges of possessing cocaine contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985.
- Three months' imprisonment (concurrent) for each cocaine possession offence, commencing 22 May 2017.
- Non-parole period of 15 months for the MDMA supply offence, commencing 22 May 2017, with release on parole on 21 August 2018.
- Balance of term: 15 months (total sentence: 30 months).
- Special circumstances found, justifying reduction of the non-parole period.
- Forfeiture of 32 BlackBerry model 9720 handsets to the Crown, to be provided to the Commissioner of Police, pursuant to s 35 of the Drug Misuse and Trafficking Act 1985.
- Drug destruction order made in respect of the MDMA and cocaine.
- Psychiatric report of Dr Adams to accompany the offender into custody for transmission to prison authorities.
Key Takeaways
- Possession of 32 PGP-encrypted BlackBerry phones was treated by the court as capable of constituting a significant indicia of supply, even in the absence of more conventional items such as scales or deal bags, given expert evidence that such devices are particularly sought by those involved in organised crime and drug trafficking.
- Where a defendant offers a legitimate commercial explanation for cash deposits (here, the sale of encrypted phones), the absence of independent corroborating evidence does not automatically defeat that explanation, but it carries significantly less weight.
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 permitted the court to extend the parole period beyond the standard proportion, specifically to support the offender's rehabilitation from drug use under supervision.
- Importing goods under a false name and impersonating another person to a delivery company were factual matters the sentencing court took into account as part of the overall picture of the offender's conduct, even where no charges arose directly from those acts.
- Psychiatric evidence indicating likely deterioration in the offender's mental health during custody informed the court's decision to transmit the relevant report to prison authorities, illustrating the court's capacity to address welfare concerns within the mechanics of the sentencing process.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 32, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
Cases cited: None cited in the provided text.