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District Court 19 September 2019

R v Wandji Watchou

[2019] NSWDC 907

Drugs
CRIME SENTENCE METHYLENEDIOXYMETHAMPHETAMINE NOT LESS THAN LARGE COMMERCIAL QUANTITY PARTICIPATE IN CRIMINAL GROUP TOTALITY OF CRIMINALITY

Citation: R v Wandji Watchou [2019] NSWDC 907
Court: District Court of New South Wales
Date: 19 September 2019
Judge: Norrish QC DCJ

Background

The offender, a man born in August 1992, was sentenced following a guilty plea entered in the Local Court to a principal offence of knowingly taking part in the supply of a large commercial quantity of MDMA (586.75 grams) between December 2017 and February 2018. He was arrested on 2 February 2018 in Surry Hills while carrying a "run phone" and $9,800 in cash linked to his drug supply activities.

The offending occurred within an organised drug syndicate. The offender operated beneath a more senior figure, Mr Hannachi, who gave him instructions and to whom he reported. The offender's role involved multiple individual supplies of MDMA across several dates, with amounts on individual occasions ranging from approximately 3 grams to nearly 220 grams. A French national named Coulaud was also connected to the syndicate but had left the jurisdiction before charges could be laid.

Three additional offences were placed on a Form 1 to be taken into account on sentence: dealing with the $9,800 in proceeds of crime, supplying a small quantity of cocaine (0.92 grams), and participating in a criminal group and contributing to criminal activity. The court had previously sentenced other members of the same syndicate, including Hannachi and Chamon, which raised the question of parity in sentencing.

  • What was the appropriate sentence for the principal offence, having regard to the large commercial quantity threshold and the 15-year standard non-parole period?
  • How should the Form 1 matters affect the overall sentence, particularly given their close connection to the principal offence?
  • What discount applied for the early guilty plea?
  • How should the principles of parity and totality operate where co-offenders of varying culpability had already been sentenced by the same judge?
  • Did the offender's personal circumstances, including absence of prior criminal history and family support, warrant a finding of special circumstances?

Decision

Norrish QC DCJ applied a 25 per cent discount to the sentence for the utilitarian value of the early guilty plea. The principal offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. While the standard non-parole period formed part of the sentencing framework (consistent with Muldrock v R), the judge undertook the required process of instinctive synthesis as confirmed in Markarian v R.

On the Form 1 matters, the court noted that the dealing with proceeds offence and the criminal group participation offence were intimately connected to the character of the principal offending. The court acknowledged that Form 1 matters can justify a longer or qualitatively different sentence, but applied the principle of totality to ensure the final sentence reflected the overall criminality without becoming disproportionate.

The court paid close attention to parity with the sentences imposed on co-offenders, particularly Mr Hannachi. The court found that Hannachi bore substantially greater moral and objective culpability, having operated over a longer period, held a more senior role, and directed the offender's conduct. The sentence imposed on the offender was calibrated to sit below that of Hannachi in a manner consistent with the principle of equal justice articulated in cases such as Mill v R.

Although the offender was expected to be released into immigration detention and subsequently deported, meaning he would not be subject to parole supervision, the court expressly stated it sentenced him as it would an Australian citizen. The inability to enforce parole conditions overseas was not treated as a sentencing consideration. No special circumstances were formally identified in the orders, though the balance of sentence (one year seven months) relative to the non-parole period (two years two months) produced a total sentence of three years nine months.

Orders Made

  • The offender was convicted of the principal offence (supply, knowingly take part in supply, of not less than a large commercial quantity of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985).
  • Sentenced to imprisonment with a non-parole period of two years two months, commencing 2 February 2018 and expiring 1 April 2020.
  • Balance of sentence of one year seven months, expiring 1 November 2021 (total sentence: three years nine months).
  • Confiscation order made pursuant to ss 18 and 19 of the Confiscation of Proceeds of Crime Act 1989: the $9,800 seized from the offender forfeited forthwith.

Key Takeaways

  • The District Court reaffirmed that Form 1 matters connected closely to the principal offence can and should influence the weight placed on personal deterrence and retributive considerations, though the totality principle limits how far additional punishment may extend.
  • Parity principles require a sentencing court to calibrate sentences among co-offenders according to their relative culpability. Where one offender gave instructions to another and operated over a longer period, that distinction in role justifies a meaningfully lower sentence for the subordinate participant.
  • A guilty plea entered at the Local Court level attracted a 25 per cent utilitarian discount in this case, consistent with the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender is a foreign national likely to face deportation rather than parole supervision, the court found that this circumstance does not alter the sentencing approach. The law requires the court to sentence that person on the same basis as any other offender.
  • Under the sentencing framework confirmed in Muldrock v R and Markarian v R, the standard non-parole period for large commercial drug supply functions as a reference point within an instinctive synthesis, rather than as a rigid statutory minimum to be applied mechanically.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18 and 19

Cases
- Attorney General's Application No 1 (2002) 56 NSWLR 147
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Holder v R (1983) 3 NSWLR 245
- Jimmy v R (2010) 77 NSWLR 540
- Markarian v R [2005] HCA 25
- Mill v R (1988) 166 CLR 59
- Muldrock v R [2011] HCA 39
- Parente [2017] NSWCCA 284
- Pearce v R (1988) 194 CLR 610
- Veen (No 2) v R [1988] HCA 14