STATE OF TASMANIA v SEAN ANTHONY WILLOUGHBY 23 MAY 2024
COMMENTS ON PASSING SENTENCE PORTER AJ
Sean Willoughby, the defendant, has pleaded guilty to one count of trafficking in a controlled substance, of which there are three particularised in the counts; cocaine, alprazolam and cannabis. The allegation is that the trafficking consisted of “operating a trafficking business”. The date range is 1 August 2021 to 8 September 2021. He has also pleaded guilty to one count of dealing in the proceeds of crime, in that on 8 December 2021 he dealt with $22,380, knowing it to be the proceeds of crime. In addition I am dealing with the pleas of guilty to summary matters of evade police in a prescribed circumstance, driving whilst suspended, using and possessing a controlled drug (methylamphetamine), and using a mobile phone while driving. The driving offences relate to what gave rise to the discovery of the indictable matters. On 8 December 2021 police were conducting vehicle stops at an intersection in Glenorchy. Police saw the defendant using a mobile phone whilst stationary at a red traffic light. An officer approached the vehicle, tapped on the front passenger side window while identifying himself, and directed the defendant to park his vehicle on the left hand side of the road where other officers were located. The defendant had his young daughter in the rear of the car. He drove through the intersection and passed a second police officer wearing a high-visibility uniform who had signalled for him to stop. He swerved round this officer and accelerated away crossing double white lines to get back on to the correct side of the street he was travelling on. He drove to a nearby car parking area, got out of the vehicle holding a backpack and put that under a tree. He got back into the car drove into an underground part of the carpark and went into a shopping centre. The shopping centre security guard located the backpack, took it to his office, opened it, found a large amount of cash and then contacted police. Later, when the bag was examined by police, it was found to contain five separate snap lock bags containing a total of 47 grams of cocaine, all inside a plastic container. One bag contained 25.4 grams, or roughly an ounce. A black zippered case contained a used ice pipe, three small snap lock bags containing methamphetamine – one with a trace, two with .6 gram – and a snap lock bag containing 2.2 grams of cocaine. Quantities of unused snap lock bags were found along with a set of digital scales with traces of white powder on the pan. Cash to the total of $22,380 was also found. The total amounts are 47 grams of cocaine and 0.9 grams of methamphetamine. On 9 December 2021 police executed a search warrant in relation to the defendant’s vehicle. His mobile phone and an envelope were seized. The envelope contained a handwritten notes consistent with a tick sheet. Later that day, the defendant’s home was searched. Some drug related paraphernalia was found along with 32 diazepam tablets in a cupboard. A notebook was found with entries also consistent with a tick sheet. When interviewed, as to his driving he admitted that he his drivers licence was suspended and he said that he evaded police because he panicked, particularly given the fact that his young daughter was in the back seat. He admitted selling cocaine to approximately ten people saying he could sell up to half an ounce to two ounces between all of his customers, and purchased one ounce to sell to others during a “good week”. An ounce was worth between $6,000 and $10,000 and he paid $7,000 for an ounce, thus making a profit of at least $1,000 per ounce. He said he made between $4,000 and $8,000 per week from the sale of cocaine. As to the cash, he said that $2,000 was his own, apparently distinguishing it from the rest of the money which was accumulated through cocaine dealing. He said that the methamphetamine was for his personal use as he was a heavy user, consuming about 5 grams per week at a weekly cost of between $2,000 and $5,000. He also admitted selling cannabis to about five people to the extent for about 2.5 ounces per week. This he had been doing for about three months or so and he had made $800 profit from selling about a kilogram. Further, he had also been selling alprazolam in the past three weeks in lots of 10 to 100, at $4.00 a tablet. Based these admissions, the State asserts that the defendant sold 12.25 ounces of cocaine during the period of the indictment. Depending on whether the cocaine was sold in standard amounts of .1 gram or of 3.5 grams the return was between $88,200 and $120,050. The potential street value of the cocaine seized on 8 December 2021 was between $13,050 and $17,850. As to the cannabis, the assertion is the sale of a total of 32 ounces at a value of $8,800. The sale of alprazolam produced the sum of $1,200. These estimates and calculations are not disputed.
The defendant is now 36 years old. He lives his partner and their five year old daughter. He has a recorded history of offending that in fact starts some considerable time ago but the more relevant features commences in October 2019 when he was dealt with in the Magistrates Court for a series of drug offences, some firearms offences and some traffic matters. He was sentenced to 4 months imprisonment the execution of the whole of which was suspended on the statutory condition for two years. That offending was in the period 2016 to 2017. This offending puts the defendant in breach of the condition, and there is an application to activate the sentence. I note that these matters that constitute the breach occurred at the end of the relevant period. He has convictions in Western Australia, one of significance being in December 2013 for possessing methamphetamine. As to his personal circumstances, I have the benefit of counsel’s submissions and a forensic psychiatric report from Dr Michael Jordan dated 28 February 2024. The defendant faced some challenges during his childhood. His parents separated when he was two and by the time he was 12 his father had lost interest in contact. This seemed to coincide with the deterioration in the defendant’s behaviour. He completed year 10, started year 11 but did not finish, and shortly after moved to Western Australia where he worked for about eight months before returning to Tasmania in 2014. After he returned to the State, he has largely maintained full time employment in various enterprises. He has been with his present partner for about seven years, and they have the child referred to earlier. Regular illicit substance use, mainly of methamphetamine, started in the defendant’s early adult years in Western Australia and extended over a period of about seven to eight years but with a period of abstinence for three years between about 2016 and 2019. He then fell into using cocaine. That in turn led to him become involved in selling in attempts to raise money to fund his addiction. He has achieved significant periods of abstinence since the end of 2021 but has admitted to intermittent use of methamphetamine, normally in the face of various stressors. He remains a regular user of cannabis. He was prescribed anti-depressants some years ago in the face of depressive symptoms. He is presently suffering significant mental health issues as a result of the stillbirth of a child in August 2023. The defendant’s partner was then 38 weeks pregnant. In Dr Jordan’s view the defendant’s response to this point is best characterised as an adjustment disorder, defined as the development of emotionally behaviourally symptoms in response to an identifiable stressor. The defendant has suffered pervasive symptoms since that event. He has been unable to distract himself from what happened, with episodes of waking with intense feelings of distress. He struggles to gain enjoyment out of events and scenarios that used to be gratifying for him, including sport at which he excelled when at school. These symptoms are consistent with a significant grief reaction. He has not sought assistance apparently being unaware that his need was greater than he thought. He is possibly on a trajectory towards a more prolonged grief reaction. Dr Jordan offers the view that specific deterrence might be moderated on account of present psychological state and that a prison sentence would weigh more heavily on him than a person who had not faced the same circumstances.
Cases involving commercial dealings in controlled substances must always be regarded in a serious light. Drugs such as those involved in this case cause much harm in the community. As a consequence, considerations of attempting to deter others from similar conduct and condemnation of the activity are paramount considerations. The period of trafficking in this case is relatively short; a period of four months, but the defendant seems to have been very active in that period with a large amount of money involved. Accepting that he was selling to a limited number of people, there remains the issue that he had no control over what they did with the drug. It is relevant that his motive was to fund his cocaine addiction, and not to make large profits in order to pursue an affluent lifestyle. Under the Crimes (Confiscation of Profits) Act 1993, the concept of dealing with proceeds of crime includes receiving and possessing such proceeds. Selling makes out the crime of trafficking under the Misuse of Drugs Act 2001. Accordingly, the receipt of money in exchange for drugs, which makes out the element of selling, also constitutes dealing with the proceeds; the acts are the same. That needs to be borne in mind in fixing the appropriate sentence. Relevant personal circumstances must also be taken into account. I take into account the pleas of guilty. I take into account that the defendant was co-operative with the police in that he made admissions in relation to his activities to an extent beyond what they would otherwise have been able to discover. The defendant’s counsel put to me that the defendant wants to be free of his addiction and what he consequently became involved in. He has cut ties with those with whom he associated while involved in selling drugs. It was put that it is unlikely he will reoffend. The defendant has been assessed as unsuitable for home detention but there is some dispute about the basis of that assessment. In the end, I think, as was submitted by the defendant’s counsel, the matter can be resolved by way of a wholly suspended term of imprisonment.
Mr Willoughby, I have set out the facts and the relevant considerations that need to be taken into account. I am satisfied that you have taken very significant steps to redeem and rehabilitate yourself. I take into account your personal circumstances and the other matters that weigh in your favour which I have outlined, including your current state of mental health. In relation to the sentence that is presently suspended and in respect of which activation is sought, I propose to proceed by way of s 27(4C)(b) of the Sentencing Act and order a sentence to take effect in place of the suspended sentence; that will be four months’ suspended on condition you commit no offence punishable by imprisonment in the period until 21 May 2025. In respect of the two counts on the indictment and the summary charges of using and possessing a controlled drug you will be convicted and sentenced to 18 months’ imprisonment, the execution of that will be wholly suspended on condition you commit no offence punishable by imprisonment for two years. My intention is that this period be cumulative to the four months’ suspended sentence just substituted. In respect of the evading police, I am required to impose a separate sentence on that matter. You are convicted and sentenced to one months’ imprisonment on that charge and that will be concurrent with the 18 months. On the remaining traffic matters I will leave it on the basis that convictions be recorded.
In addition, as has been recommended, I also make a community correction order. That will be for a period of two years from today. The core conditions of that order will be put in writing, but special conditions of that order are that you submit to the supervision of a probation officer as required, that you undergo assessment and treatment for drug dependency as directed by a probation officer, and submit to psychological or psychiatric assessment or treatment as directed by a probation officer. You will have to report to a probation officer at 3 Terry Street Glenorchy by phone or in person by 5pm tomorrow. Lastly I order the forfeiture of the sum of $22,380 and of all items set out in paragraph 43 of the Crown papers filed on 6 November 2023. As to the pecuniary penalty order I accept that there are no reasonable prospects of it being paid in the foreseeable future and as there is no discretion to reduce the amount, I decline to make that order. I order the costs of analysis $2,167 be paid.