STATE OF TASMANIA v DARREN ANDREW WINWOOD ESTCOURT J
COMMENTS ON PASSING SENTENCE 8 MAY 2020
The defendant, Darren Andrew Winwood, a 52 year old father of two, has pleaded guilty to one count of trafficking. I have also agreed to deal with a number of associated summary offences charged on complaint 52803/2019 namely, selling a controlled plant; possessing a controlled plant; using a controlled plant; using a controlled drug and possessing a smoking device. Counts 1 and 2 on the complaint are subsumed into the trafficking indictment.
On Friday 14 June 2019 members of Tasmania police attended the defendant’s address at East Devonport and searched the property. During the search they located in a bedroom at the address:
• Cannabis bud weighing 3.43 grams, and a quantity of cannabis mix weighing 3.10 grams (charge 2 on complaint number 52803/2019);
• A used smoking device and a used wooden smoking pipe (charge 5 on complaint number 52803/2019);
• A cannabis grinder;
• A quantity of small clip lock bags;
• A clip lock bag of cannabis weighing 8.98 grams;
• 2 clip lock bags of residual methylamphetamine;
• A clip lock bag of remnants of methylamphetamine;
• A cone piece;
• A set of scales, and
• A Samsung Mobile phone.
Police also searched the shed at the property and located:
• 5 clip lock bags of cannabis each individually weighing 29.9 grams, and weighing a total of 149.74 grams, behind a fireplace inside the shed, and
• A quantity of cannabis weighing 16.09 grams inside a Stanley set.
The Samsung mobile phone was forensically examined and 137 messages relating to the sale of cannabis were found. Police found text messages and Facebook messages between the defendant and 14 different individuals between 1 September 2018 and 14 June 2019.
The Crown does not accept the defendant’s claim that five bags of cannabis weighing 149.74 grams were for the defendant’s personal use, and neither do I given that they were individually packaged in the same amounts, just over an ounce each, however the Crown accepts that the cannabis found in the bedroom of the defendant’s property was for his personal use.
The defendant made a total of 137 sales between 1 September 2018 and 14 June 2019. A total of 645.8 grams of cannabis was sold.
Based on the text messages, that included an amount of cannabis supplied, the total sales yielded would equate to $9,290 between the dates in the indictment, that is a 9 month period.
The Crown makes application for the defendant to pay to the State of Tasmania a pecuniary penalty in the amount of $9,290 which is represented by the proceeds of the sale of cannabis calculated between the indictment dates.
The Crown also makes an application pursuant to s 38 of the Misuse of Drugs Act 2001 for an order that the items of property on Property Seizure Record 185357 be forfeited to the State of Tasmania.
The defendant has relevant prior convictions in 1992, 1994, 2001 and 2002 and a subsequent conviction in 2019. They are all for summary offences, although the offences of possession and use of a prohibited plant in 2002 attracted community service. The defendant is not to be sentenced for his record, however, he is not entitled to leniency. In saying that, I acknowledge his plea of guilty.
The defendant is not currently employed; his employment has ceased due to COVID-19. He is ordinarily a plasterer and is self-employed, having completed an apprenticeship in his youth. He suffers from Type 2 Diabetes; which has caused nerve damage and pain in his extremities.
The defendant has used cannabis in the past, but has had significant periods of abstinence, and generally has held full-time work. He turned to using cannabis again to deal with the decline, and subsequent death from dementia, of his father, and the fact that he was unable to maintain employment while caring for him.
It is submitted on the defendant’s behalf without demur from the Crown that the sale of cannabis by him to others was to support his own habit, and that it took the form of providing those in his immediate social circle with the substance.
The defendant is entitled to the benefit of an early plea. His plea of guilty has utilitarian value and is significant in terms of indicating an acceptance of wrongdoing and responsibility. Notwithstanding, the case against him is overwhelming.
The pecuniary penalty sought by the Crown is agreed and this will represent a significant penalty to the defendant.
Trafficking in illicit drugs is a serious matter. A sentence of imprisonment is required to make clear to the defendant and others that it is not to be tolerated. The trafficking was however of relatively small quantity, the amount sold was modest, and the number of people the defendant sold to was limited. It is not a particularly serious example of the crime of trafficking.
The defendant is convicted on the indictment and on the charges on the complaint that have not been subsumed into the indictment and is sentenced to a term of imprisonment for a period of 9 months, which period I wholly suspend for 2 years on condition that the defendant commit no offence punishable by imprisonment during that period.
Pursuant to s 38 of the Misuse of Drugs Act 2001 I order that items 7,8, 13,14 and 17 on Property Seizure Record 185357 be forfeited to the State of Tasmania.
I assess, in accordance with the Crime (Confiscation of Profits) Act 1993, s 22, the value of the benefits derived by the defendant from the commission of the offence in the sum of $9,290, and I order that he pay to the State a pecuniary penalty equal to that amount within 28 days. If he requires longer, he may enter into a repayment agreement.