CDirector of Public Prosecutions v Jones
[2025] VCC 144
•20 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01657
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW JONES |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2025 | |
DATE OF SENTENCE: | 20 February 2025 | |
CASE MAY BE CITED AS: | CDPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 144 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence
Catchwords: Guilty plea – import a marketable quantity of border controlled drugs – traffick a controlled drug – possess a drug of dependence – unauthorised possession of a substance – offender involved in the importation of cocaine/MDMA through the mail and the trafficking of cocaine to police covert operatives - s 16BA offence of possessing lorazepam to be taken into account for the purpose of sentencing – offender now 40 years old – offending in the context of significant substance abuse – subsequently diagnosed ADHD and autism - early guilty plea – previous good character – efforts at rehabilitation – prospects of rehabilitation reasonably good – general deterrence to be given weight – current sentencing practices – imprisonment and Recognisance Release Order
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code (Cth); Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:Kada v. The Queen [2017] VSCA 339; Woods v. R [2020] NSWCCA 219; R v. Buttigieg [2020] SASCFC
Sentence: Total effective sentence of two years,11 months’ imprisonment, to be released on a Recognisance Release Order after serving 15 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms N. Simpson | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. Dann KC Mr S. Thomas | Balmer & Associates |
HER HONOUR:
1Matthew Jones, you have pleaded guilty on Indictment to the following offences:
(a)
Importing a marketable quantity of border controlled drugs contrary to
sub-s307.2(1) of the Criminal Code (Cth) ('the Code'), the maximum penalty for which is 25 years' imprisonment; (Charge 1);
(b) Trafficking a controlled drug contrary to sub-s302.4(1) of the Code, the maximum penalty for which is 10 years' imprisonment; (Charges 2 and 3);
(c) Possession of a drug of dependence contrary to sub-s73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the relevant maximum penalty for which is 12 months' imprisonment (Charge 4).
2
You have also pleaded guilty to the summary offence of possessing a Schedule 4 poison, namely Sildenafil, contrary to sub-s36B(2) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is
10 penalty units (summary Charge 29).
3You were born in Melbourne in May 1984 and were between the age of 38-39 at the time of this offending. You have no prior criminal history.
Circumstances of offending
4
Broadly speaking, your offending that is the subject of Charge 1 relates to the importation of cocaine and MDMA into Australia through the post between
22 February 2023 and 30 July 2023. The offending that is the subject of Charge 2 relates to occasions you trafficked in cocaine to covert police operatives between 25 August 2023 and 1 November 2023.
5Following this, search warrants were executed at your parent's home and at the address of your partner on 6 December 2023 where police located illicit substances that are the subject of Charge 3 – trafficking in cocaine and MDMA, Charge 4 – possessing lorazepam and possessing a schedule 4 poison, namely Sildenafil (summary Charge 29).
Charge 1 – import marketable quantity of a border controlled drug between about the 22 February 2023 and 30 July 2023
6On 3 February 2023, you entered into a mail receiving agreement with Mail Boxes Etc, ('MBE') based in Glen Waverley. On 29 April 2023 and 10 July 2023 you received emails from a representative of MBE advising that mail had been received for you from overseas locations. You responded to the email on 10 July 2023 requesting that the mail be redirected to you at your PO Box in Sale.
7Between 24 June 2023 and 6 December 2023, you regularly communicated with a 'Brian Stubbs' via Telegram, relating to the purchase of drugs from Stubbs and the importation of these drugs into Australia by post. In one exchange on 25 June 2023, you wrote to Stubbs saying two letters had 'landed' but that 'none have arrived to my other drop yet'. During some of these email communications, Stubbs sent you photos or videos depicting letters addressed to you being placed in post boxes.
8On 7 February 2023, investigators retrieved eight parcels that had been intercepted by border force officers, each of which had been sent to you from an overseas location. The parcels were all addressed to you personally, and posted to various locations in Victoria, including in the Sale and Bairnsdale region. Two of the importations matched the letters depicted in videos sent to you by Stubbs on 8 and 15 July 2023.
9Subsequent analysis of the substances contained in each of the parcels revealed that they contained at least 65 grams of pure cocaine and at least 2.0 grams of MDMA. A marketable quantity of cocaine is 2.0 grams. A marketable quantity of MDMA is 0.5 grams. Your conduct in importing this quantity of cocaine and MDMA into Australia by post between 22 February 2023 and 30 July 2023 is the subject of Charge 1 – import a marketable quantity of border controlled drugs.
Charge 2 -Trafficking in a controlled drug, namely cocaine, between about the 25 August 2023 and 1 November 2023
10Between about the 25 August 2023 and 1 November 2023 you trafficked in 30.5 grams of pure cocaine to two female police covert operatives, known as 'Biljana' (or 'Billy') and 'Alex', over five separate transactions. You were the target of their undercover operation.
25 August 2023 – transaction one
11On 23 August 2023, you were parked in a silver Toyota Landcruiser in the carpark of the Century Inn Hotel in Traralgon. Biljana and Alex attended the car park with another male covert operative, with whom they had a staged 'altercation' and the male covert operative walked away. Biljana and Alex then had a conversation with you where you asked if what had happened was a 'drug deal gone wrong'. Alex said that it was, and told you they had been trying to buy 'coke'. You replied, 'well what do you think I was in the middle of doing'.
12Alex and Biljana got into your Landcruiser, where you reached into the back seat and retrieved a zip case containing a white powdered substance in deal bags. Biljana asked for a 'half ball', being 1.7 grams of cocaine, and you negotiated a price of $700. You gave the covert operatives your name, 'Matt' and your mobile phone number. The substance was subsequently analysed and found to be 1.9 grams of cocaine with a purity of 74 per cent.
31 August 2023 – transaction two
13After the first transaction, you had text message exchanges with Alex during which you asked to contact you on Signal. Using Signal, on 28 August 2023, you asked how much cocaine Alex was looking for and offered to facilitate transactions through the post, stating 'I can video it going into [a] mail box…tbh most of my clients are on mail'. You stated that using a parcel locker was 'way cleaner'.
14On 29 August 2023, Alex agreed to purchase 3.5 grams of cocaine for $1,250 to be sent by post to a parcel locker in Pakenham. You wrote to Alex stating 'btw your (sic) in the post. Half ball of the real expensive shit normally 1350-1400 and half ball of the 1200-1250 stuff…once it lands, you transfer cash I send you code'.
15During these exchanges, you openly explained your drug trafficking business with Alex, including that you import small amounts of cocaine yourself. You also sent Alex pictures of what appeared to be cocaine in rock form.
16The parcel was collected by covert operative, Biljana on 31 August 2023 after transferring $1,250 into a bank account, the details of which you had provided. You then sent the code to the locker and a photo of it to Alex. Inside the locker were parcels, containing two Ziploc bags each purporting to contain 1.7 grams of cocaine. One Ziploc back was labelled with a sticker stating 'expensive AF $1,400'. Subsequent analysis revealed that each of the parcels contained 1.7 grams of cocaine with a purity of 68 per cent and 69 per cent respectively.
15 September 2023 – transaction three
17Between 1 and 3 September 2023 you continued to exchange messages with Alex discussing the quality of the cocaine you had sold, and of other cocaine in your possession. On 9 September 2023, you sent Alex a message via Snapchat telling her she was missing out on 'Jesus stock', and she replied saying she would be 'keen to put in an order some time before next weekend'. Alex followed up that message on 13 September 2023 asking how you would like her to pay.
18Communicating through Signal on 14 September 2023, you told Alex you would be in Richmond for your drug and alcohol treatment course, and that you would charge $1,300 for 3.5 grams, stating that the quality of your cocaine stocks was '9/10'.
19You agreed to meet Biljana the next day at McDonald's in Richmond. During that meeting, you handed Biljana an unsealed, white cardboard envelope and she handed you an envelope containing $1,300. Subsequent analysis confirmed the substance was 3.4 grams of cocaine, with a purity of 76 per cent.
28 September 2023 – transaction four
20Between 16 – 27 September 2023 you exchanged more messages with Alex and Biljana, beginning with a message from Alex thanking you for the 'Jesus stock'. Following this, you had further exchanges with the covert operatives, including:
· sending a message to Alex by Snapchat on 20 September 2023 telling her, 'you need to stock up, taking a break won't be forever, Got standard A; Import A and a little bit of Jesus';
·
having further discussions with Biljana about purchasing 'Oscar' being
28 grams of cocaine 'for $7-7250 untouched', ultimately agreeing a purchase price of $7,200 on 22 September 2023; and
· contacting Biljana on 27 September 2023 on another mobile phone due to a concern that your phone was 'hot', saying you had organised half of the cocaine locally and had done what you could to arrange the rest.
21On 28 September 2023, you met with Biljana in Strathmore and handed her a package, stating, 'There's half of it'. You told her the remainder was coming from Sydney. You also said that you had 'cops breathing down your neck' and that you would clear what you had and then 'shut down for a while'. You told Biljana the cost was $3,600 for half an ounce. You also offered to show her how to import cocaine, if she wanted to take the risk, giving her a rundown of your method.
22Subsequent analysis of the substance confirmed that it was 14.9 grams of cocaine with a purity of 66 per cent.
1 November 2023 – transaction five
23Between 5 October 2023 and 31 October 2023, you continued to exchange messages with Biljana. On 5 October 2023 you exchanged messages via Telegram in which you told Biljana you had obtained the other half of the Oscar. In subsequent exchanges, you expressed suspicions that she was a police officer, ultimately blocking her on WhatsApp.
24On 12 October 2023, you were contacted by Alex via Signal. You told her you were 'pulling up stumps' and that you were not interested in doing 'stupid shit anymore'. On 30 October 2023, you told Alex you had recently been arrested by police, later sending her a photo via SnapChat depicting white powder and joking about her and Biljana being police officers. You then agreed to sell Alex 7 grams of cocaine the next day.
25On 1 November 2023, you met with Alex at a Dan Murphy's carpark and handed her a white envelope, inside of which was a biscuit box containing a small bag of white powder, in exchange for $2,400. You asked Alex for 'feedback' as soon as possible before driving away.
26Subsequent analysis of the substance confirmed it was 6.9 grams of cocaine with a purity of 80 per cent.
27Between 2 November 2023 and 5 December 2023, you continued to exchange messages with Alex via Snapchat. On 3 November 2023, you sent her a photo of two Ziploc bags containing white powder, stating 'I've got a lot better but it ain't cheap', later discussing completing the transaction by a 'dead drop'. You asked Alex to obtain a PO Box, saying it was too difficult to meet face-to-face, adding that the trafficking was only ever meant to be for close friends, and was 'getting out of hand'. You told Alex you would be 'pulling the pin soon'.
28On 3 December 2023, you told Alex you were booked into drug rehabilitation the next week, and on 4 December 2023, asked if she had found 'another hook up'. You offered to help her source another supplier when she said she was looking to buy a 'half bag', being 14 grams.
29Ultimately, between 22 February 2023 and 1 November 2023, you trafficked a total of 30.5 grams of pure cocaine to undercover operatives over five separate transactions.
6 December 2023 – search warrant
30On 6 December 2023, the police executed a search warrant at your parent's home in Strathmore, where you were located in your bedroom asleep. Inside the bedroom, the police located a plastic bag containing white powder, five pre-paid Australia Post express envelopes, other express post envelopes addressed to two separate individuals, and a bag containing drug paraphernalia. Two sealed deal bags with white powder were located in a travel bag in your bedroom, and another sealed deal bag with white powder was found in an iPhone case.
31When the police searched your car, they located two 12 tablet packets of Sildenafil 100 milligrams (summary Charge 29 – possessing a schedule 4 poison) and a deal bag containing lorazepam (Charge 4 – possessing a drug of dependence). Two more express post envelopes addressed to you were located.
32Later that day, the police executed a search warrant at another address in Patterson Lakes, where your then partner resided and where you stayed from time to time. At that property, the police located and seized the following items from the front office of the address:
· A plastic bag containing four pills;
· Five plastic bags containing white powder;
· A bag containing a brown crystallised substance;
· A bag containing a brown pill;
· A bag containing a brown rock-like substance; and
· A bag containing empty gel capsules.
33The items seized by police were subsequently analysed and, in total, comprised 88.9 grams of pure cocaine and 7.3 grams of MDMA. Your possession of these items on 6 December 2023 for a trafficking purpose are the subject of Charge 3 – trafficking in a controlled substance. You also possessed 0.5 grams of amphetamine on that date which gives rise to the Federal offence of possessing a controlled drug contrary to sub-s308.1(1) of the Code, which you have admitted, and agreed to have taken into account when I am sentencing you on Charge 3.[1]
[1]Pursuant to section 16BA of the Crimes Act 1914 (Cth)
34You were interviewed by police on 6 December 2023 and made a number of admissions to the transactions involving the covert operatives and to the postal importations. Amongst other things, you told investigators that you had a drug addiction, stating 'my life has been out of control for the past two years…every bad decision I've effectively been under the influence of drugs'.
Nature and gravity of offence
35The offences of importing a marketable quantity of border controlled drugs and of trafficking in border controlled drugs are undeniably serious, as is reflected in the maximum penalties of 25 years' and 10 years' imprisonment respectively.
36In importing a marketable quantity of a border controlled drug, there are a number of factors that aggravate your offending. Firstly, it was a repeated, deliberate and planned pattern of conduct involving eight separate importations over a five-month period between 22 February 2023 and 30 July 2023. Although the one maximum penalty of 25 years' imprisonment applies, as a rolled-up charge, you are to be sentenced on the basis that this charge reflects repeated offending over that period.
37The quantity of border controlled drugs imported by you was also significant. The charge relates to the importation of both cocaine and MDMA. Although the quantity of MDMA imported was small, the quantity of cocaine totalled 65 grams, which is 32.5 times the threshold of 2 grams for a marketable quantity of that drug.
38Beyond those features however, I accept that the offending was neither particularly sophisticated nor elaborate. To the contrary, each of the importations involved consignment of packages via post, with the MBE box registered in your name, and where each consignment was sent naming you as the consignee and to addresses linked to you.
39The evidence demonstrates that you purchased these drugs from an individual via a Telegram app. There is no evidence that your offending was part of a broader business or drug importation enterprise.
40In assessing the objective gravity of Charge 2, it is relevant that the transactions giving rise to the offence of trafficking in cocaine arose out of your interactions with covert operatives over a two-and-a-half-month period. In the case of Kada v The Queen[2], the Court of Appeal distilled the principles that apply when assessing the culpability of an offender in those circumstances, to which I have had regard.
[2]Kada v The Queen [2017] VSCA 339 (“Kada”)
41In this case, it is clear that you were an active and willing participant in each transaction. There is no basis to conclude you were coerced, pressured or induced by police to engage in the transactions. With the exception of the 28 grams of cocaine discussed in advance of the fourth transaction, you were readily able to source the cocaine you agreed to provide the covert operatives throughout the period of your offending. On that occasion, you were only able to source half the amount discussed.
42Both you and the covert operatives would initiate ongoing communication following each transaction, although I note that you told the covert operatives that you were pulling back on your involvement towards the end of that period; telling them in November 2023 that you were going to cease all drug trafficking, and that you were due to attend a residential rehabilitation program, prior to your arrest.
43Overall, the quantity of cocaine you trafficked over the five transactions, being 30.5 grams, was reasonably significant. You were paid a total of $9,250 in exchange for the cocaine. However, beyond this your offending was transactional, and involved no sophisticated attempts to avoid detection. To the contrary, you provided your real name and phone details to the covert operatives, on one occasion meeting with one of them at your family home.
44It is the quantity of the drugs possessed by you for sale, notably the 88.9 grams of cocaine, coupled with 7.3 grams of MDMA that marks the gravity of Charge 3. Although this offence relates to your possession of these drugs on one day only, it could not be said this was isolated offending given your conduct in the months preceding the execution of the search warrants.
45As you will well appreciate, the trafficking in drugs such as cocaine and MDMA causes incalculable harm to addicts, their families and to the community more broadly. The fact that the cocaine trafficked to the covert operates did not enter the community affords little, if any, weight in your sentence. As the Court of Appeal has explained, this is because it would 'be anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which from [his] perspective, is fortuitous, namely, the involvement of the police'.[3]
[3]Kada [2017] VSCA 339, at [72(f)]
46Overall, this was serious drug-related offending, that involved your planned importation of cocaine over five months commencing in February 2023, followed by trafficking in a reasonably large amount of cocaine to the covert operatives over two and a half months between August and November 2023. This in turn, led to the execution of the search warrants at two locations on 6 December 2023 where a sizable amount of cocaine and, to a lesser extent, MDMA was possessed by you for a trafficking purpose.
47The situation regarding your moral culpability is more complex. In this case, for reasons I expand upon further in my reasons, I accept that your offending was not motivated by the profits to be made from trading in illicit drugs. Rather, your offending appears to be the result of a complex interaction between your own drug addiction, your diagnosed ADHD and recently diagnosed autism spectrum disorder. This was accepted by the prosecution. Primarily, you offended to ensure an ongoing supply of drugs though those you were associating with, which, as you told police, led to things getting 'out of control'.
Personal circumstances
48
I now turn to your personal circumstances, much of which I have drawn from the personal details you provided to consultant forensic psychiatrist, Associate Professor Rajan Darjee when you were assessed for the purposes of your plea on
13 December 2024 and 16 January 2025; and forensic psychologist, Ms Marlese Bovenkerk who has treated you in custody since May 2024. I have also obtained further details from your letter to the court dated 10 January 2025, in addition to a reference provided by your brother, Desmond Jones dated 4 February 2025.
49You were raised by your parents in the northern suburbs of Melbourne, with one younger brother. You were born partially deaf, but this was not diagnosed until you were five years old. You attended Pascoe Vale South Primary School, but felt isolated and socially awkward. You needed to wear prominent hearing aids, which you found stigmatising, and experienced bullying in both primary school and at Strathmore High School. You were also significantly overweight as a child.
50In his reference, you brother states that you 'faced relentless bullying' at school and within your extended family, making social connections difficult. In your letter to the Court, you describe removing your hearing aids at school when you wanted the 'daily torment' to end and to feel 'normal'.
51Your brother states that these experiences ultimately drove you to succeed, and you studied hard in Year 12. You then attended university, completing a bachelor's degree in finance at La Trobe University. It was at this time you first began using MDMA, which you found improved your confidence socially. You met your future wife at university, Katrina, who was studying law. She provided you with both academic and social support, and you completed a master's degree in risk management in 2010. Following your graduation, you worked as an insurance underwriter for five years.
52In your late 20s you had the opportunity to secure a KFC franchise and relocated to Adelaide with Katrina, who you married in 2014. You ultimately became a successful franchisee. You worked full-time in the business and won KFC's Franchisee of the Year award multiple times. You and your then wife returned to Victoria in 2016, living in the Gippsland area, where you developed a financially lucrative franchise enterprise, holding multiple outlets, by the time of your arrest.
53By the age of 26, your drug addiction problems worsened. After trying cocaine, you quickly developed a significant addiction. At various times, you would attempt to cease all drug use but would quickly relapse. Your cocaine addiction continued throughout the successful expansion of your business. At one point, while working in the business, you were admitted to the Royal Adelaide Hospital for 10 days following an overdose. You have previously engaged in drug treatment with a psychologist, Dr Francis Puccio for your diagnosed stimulant abuse disorder, attending 98 sessions with him between 21 February 2020 and 5 December 2023. In Dr Puccio's report dated 18 August 2024, he states that your substance abuse issues cause you significant distress, but that you have 'experienced ongoing unsuccessful attempts to control [your] stimulant use'.
54You and your wife have two children, a son aged 10 and a daughter aged five. In September 2022, your marriage ended, in large part due to your ongoing substance abuse problems. You then struggled to find a stable, permanent place to live, moving to five different locations over the two years prior to your arrest.
55Following the separation from your wife, and in the context of an ongoing dispute with a former business partner, you write that your life 'descended into absolute total and utter chaos', using cocaine daily in addition to methamphetamine abuse. You overdosed multiple times and experienced psychotic episodes, some of which required hospitalisation.
56It was around this time that you first came to the attention of police.
57On 11 September 2023, you were observed by police in the back of your car at 5.56 am. Police found multiple bags of prescription medication in the vehicle.
58On 24 September 2023, you gained entry to a house in Sale where you showered, stole clothing and, having changed, stole a vehicle, later abandoning it while it was still running. You had stolen an unusual assortment of items, including champagne bottles, water protection shoe spray, and a hair clipper attachment. You were then observed on the roof of a pharmacy and apprehended in a nearby carpark.
59On 20 November 2023, you were observed by police driving in an erratic manner. You were seen to reverse into a driveway in Campbell Court in Sale, before stopping the car, exciting and then climbing onto the roof of the house. You were later arrested by police with an injured ankle from jumping off the roof.
60In August 2024, you were sentenced by the Sale Magistrates' Court on a consolidated plea and were convicted and fined an aggregate of $1,500 for offences that included possession of cocaine, methylamphetamine, a Schedule 4 poison and another unnamed drug. In relation to the charge of theft of a motor vehicle, careless driving and driving whilst exceeding the prescribed concentration of a drug, you were also convicted and fined an aggregate of $1,500 and your licence was cancelled.
61You began seeing a specialist in addiction medication, Dr John Chow in July 2023 and continued to do so until 24 November 2023, prior to your remand. In his report dated 19 September 2024, Dr Chow confirmed that you had been diagnosed with a Polysubstance Abuse Disorder which, in his opinion, developed as a 'maladaptive coping mechanism' for distress or dysregulation.
62
You were referred by Dr Chow to the Melbourne Clinic - Addictive Behaviours Day Program and commenced psychological treatment through that program on
23 August 2023, attending seven sessions with Mr Keogh at Melbourne Mental Health prior to your remand. You were due to be admitted to the Melbourne Clinic's Substance Withdrawal Program from 12 December 2023, but did not do so, having been remanded for this offending.
Matters in mitigation
63In detailed written submissions that were expanded upon at your plea hearing, the following matters were raised on your behalf in mitigation of your sentence.
64First and foremost, you entered a guilty plea at the earliest opportunity, at a committal mention, indicating an early acceptance of responsibility for your offending and saving the court and the community the time and resources associated with a trial. There is significant utility in your early guilty plea.
65In addition to the remorse inherent in your guilty plea, I have regard to the fact you made significant admissions when interviewed by the police and have consistently expressed remorse to your family and others who have provided references on your behalf, including those who have known you through Narcotics Anonymous.
66You are also entitled to have your previous good character recognised in the sentence I impose. You are a man with no prior criminal history, having devoted much of your adult life working hard to establish and expand your business enterprise and to support your family. Those who have known you personally for a long time and have provided character references on your behalf, speak of you as 'hard working, and family oriented', someone who has mentored many young people in the hospitality industry and supported charitable events.
67
Since May 2024, you have engaged in psychological treatment with
Ms Bovenkerk, attending a total of 26 sessions by videoconference whilst in custody. In Ms Bovenkerk's report dated 24 January 2025, she concluded there was strong evidence that you have ADHD and autism, but recommended further assessment.
68You were subsequently assessed by Associate Professor Darjee in custody. During that assessment, you denied any profit motive, telling Associate Professor Darjee that you became obsessed with providing 'high quality' drugs and became good at it, just as you became successful in running your business. Associate Professor Darjee states this enabled you to indulge '[your] obsessive interest in cocaine (and MDMA)'. You explained that your drug-taking 'got out of control', with your mental state and behaviour becoming increasingly erratic and risky. This is borne out by the circumstances leading to the summary offences, to which I have referred.
69Having conducted psychometric testing, Associate Professor Darjee assessed that you have two 'longstanding' neurodevelopmental conditions in the form of ADHD, characterised by emotional and behavioural dysregulation; and 'a very likely' autism spectrum disorder ('ASD'). As to the symptoms of Autism Spectrum Disorder, Associate Professor Darjee states that since childhood, you have demonstrated persistent deficits in communication and interaction, with restricted and repetitive patterns of behaviour.
70As context to your offending conduct, Associate Professor Darjee concludes:
' His ASD, ADHD, deafness, bullying, alienation and isolation as a child left him feeling ostracised, inadequate and inferior. As an adult, he has developed ways of compensating for these core and deep-seated views of himself as defective and inferior through striving to overachieve, trying to be perfect, pleasing others and projecting an image of himself as self-assured…'[4]
[4]Exhibit 1 – Psychiatric Report of Associate Professor Rajan Darjee dated 4 February 2025 at [34]
71Associate Professor Darjee also confirms that you have a chronic and severe substance misuse disorder, noting that your ADHD and ASD contribute to your obsessive fixation on MDMA and cocaine. He describes your cocaine and MDMA abuse as a form of self-medication for the interpersonal difficulties caused by your ASD.
72It is not argued that these matters operate to reduce your moral culpability for your offending. That is clearly correct. However, I accept that your complex developmental and personality issues, provide a more complete picture of the context and motivation for your offending.
73I agree with the prosecution submission that your prospects of rehabilitation are difficult to assess at present. That is not to suggest there are not many positive indications for your future.
74As highlighted in the submissions made on your behalf, you have used your time in custody productively; engaging in 26 episodes of psychological treatment with Ms Bovenkerk, chairing Narcotics Anonymous meetings at Marngoneet Correctional Centre and undertaking multiple educational and rehabilitative courses, including those directed to improving your mental health. Of significance, you have also engaged in many hours of custodial drug treatment programs. In a letter provided by Zoe Clarke, the AOD Group Program Facilitator with GEO Healthcare dated 6 November 2024, she states that you have engaged 'positively and enthusiastically' in group sessions, including at six-hour 'Ice and Me' program, a 27-hour 'Skating on Ice' program, and a 15-hour program called 'Changing Gears'. This is to your credit.
75In addition, you have been entrusted to fill the role of a Peer Support Worker in custody and have volunteered your time as a reading mentor to other prisoners, even though this is usually a paid position. The 'Turning Pages' supervisor of this program describes you as an asset to that program.
76It is also relevant to my assessment of your future prospects that you continue to enjoy family support, coupled with a strong work history, noting that you have developed a comprehensive future business plan while in custody. You have demonstrated motivation to turn your life around, and have engaged in the programs presently available to you in a positive way. You are also medicated for the first time for your diagnosed ADHD, and report this is having a positive effect. I also accept that this time in custody – as a first-time offender - will have a salutary effect on you.
77Against this, you have engaged in psychological counselling over the past decade and treatment for your long-standing drug addiction issues in the past, including at the time of this offending. As discussed in Ms Bovenkerk's report, your future prospects very much depend on the risk of your relapsing into substance abuse in the community. Ms Bovenkerk does assess that you have insight into this risk and understand how challenging this will be for you in the future. Ms Bovenkerk states that you would benefit from an integrated, multi-disciplinary treatment team to assist you to manage your ADHD (and now ASD) symptoms, and to ultimately achieve long-term recovery from substance use.
78You have indicated a willingness to engage in the residential treatment program offered by the Melbourne Clinic upon your release. Subject to your continued engagement in drug treatment and other counselling to promote ongoing abstinence, and removal from all other drug-related influences, I assess your future prospects as reasonably good. Specific deterrence does however still have a role to play in the sentence I impose.
Other sentencing considerations
79I turn now to other sentencing considerations.
80In sentencing you on the Commonwealth offences, I am required to impose a sentence of a severity that is appropriate in all the circumstances, and have taken the factors set out in sub-s16A(2) of the Act into account.
81In cases involving federal drug offences, general deterrence is a sentencing consideration of weight. Others must be deterred from engaging in the importation and trafficking of illicit substances by the sentence I impose. Factors such as previous good character and matters personal to an offender are generally afforded correspondingly less weight for offences of this kind. All other things being equal, the quantity of the drug imported or trafficked is a highly relevant sentencing consideration.
82I have also had regard to the table of comparative cases helpfully provided by the prosecution. Comparable cases may be relevant to a sentence in two ways. Firstly, in identifying relevant sentencing considerations and secondly, where the cases yield discernible sentencing practices against which to examine a proposed sentence.
83I have considered each of the cases to which I was referred, in particular those of Woods v R[5] and R vButtigieg[6], while noting that the sentences imposed in other cases do not act as precedents; and nor do they fix boundaries that bind the courts. Ultimately, each case must turn on its own facts and circumstances.
[5][2020] NSWCCA 219
[6][2020] SASCFC 38
84What the authorities do demonstrate is that terms of immediate imprisonment can generally to be expected for importing a marketable quantity of cocaine, particularly in cases involving many multiples of the threshold for a marketable quantity.
85In this case, there is no dispute between the parties that an immediate term of imprisonment partially suspended by the imposition of a recognisance release order ('ROO') is a sentence that is available to meet all the relevant sentencing considerations to which I have referred. The only difference between the prosecution submission and the sentencing submission made on your behalf is the length of the term of imprisonment to be served before being released on an recognisance release order.
86In fixing a date for your release subject to a recognisance release order, I have had regard to the gravity of your offending, balanced against the need for the sentence to further promote and cement your prospects of rehabilitation, and the community protection that will follow, whilst supervised in the community as a condition of that order.
87You have been assessed by Community Corrections as suitable for supervision, and community treatment for mental health and drug treatment whilst subject to a recognisance release order and have consented to those conditions being made.
Sentence
88Balancing the matters to which I have referred, whilst having regard to the maximum penalties for each offence, I sentence you as follows:
89On Charge 1 – import a marketable quantity of border controlled drug, you are convicted and sentenced to 24 months' imprisonment. This is the base sentence and commences today, 20 February 2025.
90On Charge 2 – traffick in a controlled drug, namely cocaine, you are convicted and sentenced to 18 months' imprisonment. In imposing this sentence, I have had regard to the fact the charge is a rolled-up one, reflecting five separate transactions, whilst the one maximum penalty applies.
91On Charge 3 – trafficking in a controlled drug, namely cocaine and MDMA, you are convicted and sentenced to 18 months' imprisonment. In imposing this sentence, I have had regard to the quantity of drugs possessed for a trafficking purpose on 6 December 2023, and to the offence of possessing a controlled drug, namely amphetamine on that date, pursuant to sub-s16BA of the Act.
92I direct that the sentences imposed on Charges 2 and 3 be served concurrently.
93I further direct that the sentences imposed on Charges 2 and 3 commence seven months before the sentence imposed on Charge 1 is completed. In other words, 11 months of the sentences imposed on Charges 2 and 3 are to be served cumulatively upon the sentence imposed on Charge 1.
94This gives a total effective sentence of two years, 11 months' imprisonment on the Commonwealth offences.
95Pursuant to sub-s20(1)(b)(i) of the Act, I direct that you be released after serving 15 months' of the term of imprisonment imposed on Charges 1, 2 and 3 upon you giving security by way of recognisance of $4,000 to comply with the following conditions:
(a) that you be of good behaviour for a period of three years;
(b) that you be under the supervision of the Deputy Commissioner, Community Correctional Services, or their nominee; and
(c)that you attend for assessment, and if assessed as suitable, undertake and complete any mental health and drug treatment programs as directed.
96Pursuant to s 18 of the Sentencing Act 1991, I direct that 442 days of presentence detention be reckoned as served under the sentence I have imposed.
97Mr Jones, I am required to explain the purpose and effect of the Recognisance Release Order I have just made. The order reflects the gravity of the Commonwealth offences, but also the mitigating factors to which I have referred. If you are of good behaviour over the following three years following your release, and comply with these conditions, then you will have complied with the recognisance.
98If you are not of good behaviour, or you fail to comply with the conditions of the order, you may be brought back before the Court. Depending on the nature and seriousness of any contravention, the Court may either take no further action, impose a fine; extend the period of your good behaviour; impose a different penalty; or revoke the Recognisance Release Order, resulting in your imprisonment for the balance of your sentence.
99On Charge 4 – possessing a drug of dependence, namely lorazepam, you are convicted and fined $800.
100On summary Charge 29 – possess a Schedule 4 poison, namely Sildenafil you are convicted and fined $200.
101Finally, I indicate, pursuant to s 6AAA of the Sentencing Act 1991, that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of four years' imprisonment with a non-parole period of three years.
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