STATE OF TASMANIA v ZOE LEANNE WHILEY 16 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Zoe Whiley, you plead guilty to trafficking in a controlled substance, possession of stolen firearms and unlawful trafficking in firearms. I also agreed to deal with the summary charges of possessing and using methamphetamine and possessing a thing used for administration of a controlled drug, two counts of possessing a firearm when not a holder of a license and one count of conveying a firearm contrary to the prescribed safety requirements.
During 11 and 12 January 2020 a house at Boat Harbour was broken into twice. Among the things stolen were three firearms, a Ruger .22 long rifle, a Saco .22 250 rifle and a Sportco single barrel shotgun, all taken from the firearms safe along with boxes of ammunition. At about 5.30 pm on 12 January 2020 the police searched your home in Acton. The Saco rifle was found in the boot of a vehicle there. You were arrested and interviewed. You admitted only that you were aware that the rifle had been brought by others to your property but claimed not to have seen it, and that others had tried to sell you the other two firearms for drugs or money. A few days later on 17 January 2020, CCTV recordings from your home were seized. Examination of the CCTV, with other evidence, disclosed that over the course of 11 and 12 January all of the firearms were taken to your home by two men you knew. You were interviewed again on 11 March 2020 about the firearms and other matters. You admitted that all three firearms were taken to you, that the two men asked you to try to sell two of them, and that on the day you received them you handed them on to a third man who was going to sell them for you for $500 each. By delivering the firearms to that person for that purpose you trafficked in them. The Ruger rifle and the Sportco Shotgun were recovered from a car he was driving on 3 February 2020 after he tried to evade the police. The shotgun was loaded and he had other ammunition in his pocket. He is a person with a long criminal history including for violence. By possessing those firearms and by conveying them you committed the summary offences to which I have referred.
The facts related to the drug trafficking charge commence from the police search conducted on 12 January. The summary charges arise from that same search. You produced two snaplock bags containing a total of 18 grams of methylamphetamine. One bag was in your handbag with a set of scales, and the other was concealed in your clothing. The police also found a smaller snap lock bag containing one gram of Ice, Ice pipes and foil sticks. When you were interviewed you admitted that you were an Ice user, but you had purchased a quantity of the drug on credit for $3000 intending to sell enough of it in point or half a gram quantities to cover your costs, and to use the rest. You were charged and bailed.
About two months later, on 11 March 2020, you were a passenger in a car intercepted by the police in Burnie. They found a snap lock bag concealed behind the glove box which contained what was later established to be 50.47 grams of methylamphetamine. In the car you had scales, empty snap lock bags and $3740 in cash. You admitted when interviewed that, following a short break after your earlier arrest, you had been purchasing Ice on credit for sale to sub-dealers in quantities up to an ounce. You admitted that for each of the six weeks or so following the beginning of February 2020 you handled three to four ounces, which is between about 80 and 110 grams, of Ice, and the turnover was between $50,000 and $70,000. You said you were selling to sub-dealers, so the total value of the drug sold to end users would have been much more. The State does not now dispute the contention that the cash you had was yours but not sourced from drug sales.
You are aged 38. You had a disadvantaged child hood and were subjected to family breakdown, neglect, violence and serious abuse. You have three children aged between 16 and 20. You claim to suffer from post-traumatic stress disorder and anxiety. You have held employment. You did not regularly use illicit drugs until about 10 years ago when you commenced a new relationship. You quickly became a heavy user of amphetamine and methylamphetamine. You have an extensive criminal record which commences when you were 17. Prior to 2015 there are some convictions for violence, dishonesty and anti-social offending, but your record till then was mostly for driving offences. Then in October 2015 you were fined and made subject to a probation order for a series of driving offences, one of which was driving with a drug in your blood. In June 2017 you were sentenced by a magistrate to a short suspended term of imprisonment, and community service for numerous offences committed during 2016 and early 2017. They are mostly driving offences, some of which involve driving with a drug in your blood, but also include selling, possessing and using a controlled drug. In November 2017 you were sentenced to imprisonment for six months, most of which was suspended for two years, and probation, again for offences including driving offences, dishonesty and common assaults committed in 2016 and early 2017. Those sentences did not deter you. You continued to offend and, on 18 March 2019, you were sentenced to imprisonment for a total term of 12 months and four days from 14 December 2018. That sentence was imposed for more offences of dishonesty and drug related driving offences, and included activation of the previously suspended sentence. You have a history of failing to comply with the conditions of community based sentencing orders. On 2 July 2020 you were sentenced by Brett J to imprisonment for 12 months from 19 June 2020 with eligibility for parole after 7 months for a serious assault committed on 29 August 2019. That sentence is relevant to totality but is for different criminal conduct and no reduction in sentence of substance is called for.
Attempts have been made to address your addiction. A drug treatment bail order was made in 2018 but failed. You successfully completed the Equips Addiction program while in prison in 2019 but relapsed soon after your release. While you were in custody in 2019 efforts were made to address your ongoing mental health issues with some good results, but again not enough to prevent the crimes you committed not long after your release. Imprisonment will be made more difficult for you because your mother is terminally ill and may die while you are in custody, but such is the price of committing serious crime.
Many details of your drug trafficking conduct are based on your admissions to the police. It is in your favour that you have pleaded guilty. By doing so you have facilitated justice at a time when trials are significantly delayed as a result of the pandemic. Your sentence will be reduced as a result. Even so, you admit guilt to serious crimes. Trafficking in firearms is serious because of the strong link between stolen firearms and crimes involving violence and dishonesty. These guns were not registered to you and it was obvious that they had been dishonestly obtained. Stolen firearms almost inevitably end up in the hands of criminals, as they did here. I take into account that you did not initiate the attempted sales and that you acted on the request of others.
The same cannot be said about the drug trafficking. It has frequently been said in this court that those who traffic in illicit drugs trade on the misery of others and can expect harsh punishment. Yours is a serious example of drug trafficking. I accept that you were a drug user in the grip of an addiction, probably desperate to obtain your own supply. But that goes nowhere near explaining the nature and scale of this trafficking and the nature of your involvement. Ice is highly addictive and damaging to health. It causes great harm to those who become addicted to it and the people around them. Its use and trade generates a great deal of other criminal activity, especially serious crimes of dishonesty and violence. You have no prior convictions for trafficking but apart from your guilty plea and admissions there is no reason for any lenience. Your criminal conduct continued even after you had been apprehended once for both drug and firearm offences and admitted to bail. By acting in that manner you displayed contempt for the law and for authority. A significant term of imprisonment is the only appropriate sentence. I am to determine a sentence which is a fair and just reflection of your total criminality.
I was asked to assess, in accordance with the Crime (Confiscation of Profits) Act 1993, s 22, the value of the benefits derived by you from the commission of the offence in the sum of $50,000 and order that you pay to the State a pecuniary penalty equal to that sum. I decline to make it. I have a discretion to make such an order at all, but if the order is made it must be made in the sum assessed. It is a significant sum. If it is made you will always be indebted under the order unless and until you satisfy it. There is no suggestion that you have in some way saved your ill-gotten gains or converted them into significant assets that could be applied in discharge of such the order. You already owe $7,000 to Centrelink, $1500 to Housing Tasmania and more than $17,000 in outstanding fines. I think that, in the circumstances outlined to me, that there is no realistic prospect that you will ever be able to pay off a penalty in that amount, or any meaningful part of it.
Zoe Whiley, you are convicted on each count to which you have pleaded guilty. I order that the two glass smoking devices and the electronic scales seized by police on 12 January 2020 and the electronic scales seized on 11 March 2020 are forfeited to the State. Pursuant to the Misuse of Drugs Act 2001, s 36B, I assess the reasonable expense of and attending the analysis or examination of the controlled substance as $358 and award that sum against you as part of the costs of the prosecutor. You have 28 days from your release to pay that sum. The personal use, possession and smoking device charges on complaint 50681/2020, counts 1, 3 and 4, the summary firearm charges on complaint 50976/2020, counts 4, 5 and 6 and the further use charge which is count 2 on complaint 50974/2020, in light of the other offences I propose to impose, warrant only a conviction without further order. Count 2 on complaint 50681/2020 is subsumed in the indictment. On indictment 269/2020, counts 1 and 2, the firearms charges, I impose one sentence. You are sentenced to imprisonment for three months cumulative to the term that you are currently serving. I order that you not be eligible for parole until you have served half of that term. On indictment 266/2020, trafficking in a controlled substance, you are sentenced to imprisonment for two years and four months, cumulative to the term just imposed. I order that you not be eligible for parole until you have served half of that term. The result is a total term of two years and seven months cumulative to the term that you are currently serving with eligibility for parole after having served half of the sentences that I have imposed.
[On 16 October 2020, following imposition of the sentence, Pearce J was informed that the defendant had been in custody between 11 March 2020 and 2 April 2020 and that the period of custody had not been taken into account in any other sentence. As a result, on 19 October 2020, Pearce J corrected the sentence imposed on 16 October 2020 by ordering that 23 days of the three month term imposed on counts 1 and 2 on indictment 269/2020 be served concurrently with the term of imprisonment imposed by Brett J on 2 July 2020 and that the balance be served cumulatively.]