CDirector of Public Prosecutions v Verschaeren

[2021] VCC 528

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01547

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW VERSCHAEREN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial 2 - 8 December 2021   Plea  1 February 2021
DATE OF SENTENCE:	3 May 2021
CASE MAY BE CITED AS:	CDPP v Verschaeren
MEDIUM NEUTRAL CITATION:	[2021] VCC 528

REASONS FOR SENTENCE

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Subject: Import a marketable quantity of a border controlled drug, methamphetamine.

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr K. T. Armstrong
For the Accused	Ms A. Brennan

HIS HONOUR:

1Matthew Verschaeren, you have been found guilty after a short trial of one charge of importing a marketable quantity of a border controlled drug, methamphetamine.  The offence occurred on 27 April 2018.  The maximum penalty for this offence is imprisonment for 25 years or a fine equivalent to 5,000 penalty units or both.

2When you were arraigned before the jury you pleaded not guilty and a short trial followed on Charge 1.

3Before the jury you also pleaded guilty to a lesser State offence of possession of a drug of dependence, namely 1,4-Butanediol.  That offence occurred on 8May 2018.  When investigators arrested you in relation to Charge 1, you were found to be in possession of a small quantity of 1,4-Butanediol.  It is conceded by the prosecution that it could not prove beyond reasonable doubt that you possessed this drug for a trafficking purpose.  In those circumstances the maximum penalty for the offence in Charge 2 is imprisonment for one year and/or a fine equivalent to 30 penalty units.

4In addition, when I heard the plea you consented to me dealing with a summary charge in this court.  That was a charge of committing an indictable offence whilst on bail.  The maximum sentence for this offence is imprisonment for three months.  On this charge you will be convicted and discharged.  The indictable offence that you committed was the offence in Charge 1.  At the time you were on bail for summary charges.

5Whilst you cannot be punished for having gone to trial in relation to Charge 1, as is your right, at the same time you cannot expect a reduction in sentence in relation to that charge which you would routinely be entitled to had you pleaded guilty at an early opportunity and thus saving the time and costs of a trial.

6In relation to Charge 2, the quantity of the drug possessed by you was small (3.3 grams) and you indicated right from the time of your arrest that you would plead guilty to that charge.  On Charge 2 you will be convicted and discharged.

7Your main criminality for which I must sentence you relates to Charge 1, the Commonwealth charge. In sentencing you for a Commonwealth offence I must have regard to the matters contained in Part 1B of the Crimes Act 1914 (Cth), and particularly the non-exhaustive matters set out in s.16A(2) of that Act.  In passing sentence upon you I have had full regard to these matters.

8You were born on 6 May 1985.  You will thus be aged 36 in a few days’ time.  You have a number of prior convictions from eight previous court appearances between 2003 and April 2018.  You also have a number of subsequent convictions from court appearances since you were apprehended on these matters.  Your prior convictions include for offences involving acts of violence, as well as dishonesty and weapons offences.

9Your offending involved you importing into Australia from the US, a quantity of 82 grams pure of the drug methamphetamine.  The drug was parcelled in a clear plastic bag and concealed inside a microwave oven consigned to you from the US for delivery by DHL.  The concealed parcel was detected and intercepted by Customs Officers before delivery to you, and you were arrested and charged.  You arranged the importation.  The seriousness of your offending can be gauged from the fact that the Parliament has proscribed a maximum penalty of 25 years' imprisonment.  In sentencing for crimes of this kind I must have full and proper regard for the need for the sentence to reflect proper application of the sentencing principles of general and specific deterrence.  The sentence must also serve to appropriately denounce your crimes.

10As I have said the trial was of short duration.  You admitted each element of the offence in Charge 1 of importing a border controlled drug methamphetamine in a marketable quantity.  You signed a statement of agreed facts which sets out all of the facts alleged against you by the prosecution (Exhibit C).  It is not necessary that I here again set out all of those facts which I have had full regard to in passing sentence.

11Your defence was that even though you imported the marketable quantity of methamphetamine, you intended it for self-use and you had no commercial intent.  You did not give evidence, as is your right, and you relied upon what you had said to the investigators in a recorded record of interview.  You bore the onus of establishing on the balance of probabilities that when you imported the 82 grams of the border controlled drug methamphetamine in a marketable quantity you had no commercial intent, and you did not intend to sell it and you did not intend that any other person would sell it.  You told the police that you did not expect to receive the quantity of the drug pure that was found to be contained in the parcel imported but a lesser quantity for self-use.  By its verdict the jury must be taken as having rejected what you said in your record of interview.  There was no evidence of you having paid for the drug imported which was estimated to have a street value in excess of $20,000.

12In my opinion it was not a difficult task for the jury to decide that what you had said to the investigators when interviewed was false.  This was a disguised importation in which you were the consignee.  You knew the tracking number to enter when making inquiry on the DHL website.  When you made a phone inquiry at DHL as to the delivery of the parcel to you, you were told it had been referred to Customs and you were alerted to the possibility of interception of the parcel and detection.  You then gave DHL a false mobile phone number although mindful that your call number could be traced.

13The prosecution case was in part that by the time you were interviewed you were well aware there was a mountain of evidence against you and so you came up with what the prosecutor Mr Armstrong termed “the Crazy American Cover Story”.  The jury no doubt accepted the prosecution argument that you knew that the 82 grams of methamphetamine contained in the importation was too large a quantity for your own personal use and you knew that you had to come up with a story.  And that is what you did.  You are not to be punished for lying, but you are to be sentenced for importing 82 grams of methamphetamine, a marketable quantity.

14Having said all of that, I accept that this was a relatively unsophisticated importation.  The consignment was addressed to you at your address and your mobile phone number was supplied by the consignor.  I do not accept that you were expecting a relatively small amount to be consigned to you for personal use, consistent with the jury’s verdict which clearly rejected that story.

15The amount of the drug imported by you was 11% approximately of a commercial quantity threshold.  I accept there is no evidence of your personal enrichment.  There is no evidence of your having trafficked methamphetamine or other drugs at the time of this offence.  In my view your actions in committing the offence in Charge 1 fall towards the upper end of the lower range for this kind of offending.  I accept that the offending must be viewed as having occurred in the context of your drug addiction.

16Although Ms Brennan conceded I must impose a sentence of a term of immediate imprisonment, she nevertheless submitted I should impose a sentence of less than three years and fix a date for your release on a recognizance release order.  Mr Armstrong who appeared to prosecute submitted I must fix a head sentence and fix a non-parole period.  In my judgement your offending is serious, and having regard to your prior convictions, I accept and act on the submissions of Mr Armstrong and this will be reflected in the sentence that I will soon pass.  Both counsel referred me to a number of cases from other courts by way of assistance with current sentencing practices for this offence in Charge 1.  I have had regard to those cases.

17I turn to put things into some form of chronological order.  That needs to be done because whilst awaiting trial you have been charged and convicted on other matters in the Magistrates’ Court.  You have been in custody since 20 July 2020, in part because of these matters but mostly because of other charges and a subsequent sentence.  There is thus a question of totality in the sentencing of you that I must and do have regard to.

18You were arrested and interviewed on 8 May 2018.  On 7 June 2018 you were first charged on summons with the offence of attempting to import a border controlled substance.  There followed some mentions in the Magistrates’ Court.  On 21 March 2019 you were charged with the indictable offence in Charge 1.  There followed further mentions in the Magistrates’ Court and on 10 March 2020 the charges were adjourned in the Magistrates’ Court because of COVID-19 restrictions.

19On 28 October 2019 you were remanded on unrelated summary charges.  After serving 45 days pre-sentence detention on those unrelated charges you were bailed on those unrelated charges on 12 December 2019.

20On 20 July 2020 you were remanded in custody in relation to a number of further unrelated charges in the Magistrates’ Court.

21Whilst in custody between 14 October 2020 and 1 December 2020 I heard argument and submissions in relation to a number of matters relating to the trial ultimately ruling on the admissibility of some evidence on 1 December 2020.  The trial before me took place between 3 and 8 December 2020.  Upon the jury returning a guilty verdict you were remanded for plea on 1 February 2020.

22You were finally dealt with for the unrelated matters in the Magistrates’ Court on 19 February 2021.  Those charges related to offending both before and after this offending that I must sentence you for.

23The Magistrate imposed a total effective sentence of imprisonment for one year and fixed a non-parole period of six months' imprisonment before being eligible for parole.  121 days pre-sentence detention was declared by the sentencing Magistrate in the result that you became eligible for parole on those sentences on 30 March 2021.  Those Magistrates’ Court matters involved a number of State charges consolidated from a number of different informants and included offences involving dishonesty, threats, stalking, driving offences, damaging property and breaching a Community Corrections Order.

24In relation to these charges for which I must sentence you, it is agreed that as at 8 December 2021 when the jury found you guilty of Charge 1 you had accumulated 67 days pre-sentence detention in relation to Charge 1. Since then you have accumulated a further 33 days pre-sentence detention between 30 March 2021, and today, a total of 100 days. Pursuant to s.19 of the Commonwealth Crimes Act, I must fix the date upon which any sentence I impose on Charge 1 must commence.  You will be convicted on Charge 1 and sentenced to a term of imprisonment to commence on 31 March 2021, and I will declare 100 days as having been already served by way of pre-sentence detention.

25I turn to some matters personal to you.  I have been greatly assisted by an outline of submissions filed by your counsel, Ms Brennan, which I marked as Exhibit 1 on the plea.

26You were born to parents who raised you in their faith as Jehovah Witnesses.  You are one of four children.  I received into evidence a reference from your mother.  She has not given up on you despite your criminal drug affected life.  She and your father have a regular weekly video visits with you.  She said in her reference that when not drug affected you are a smart person capable of gainful employment.  She told me and I accept that your drug dependence is heartbreaking to her and is unacceptable.  She asked me not to impose a sentence that will make it difficult for you to achieve your desire to get back into the work force.  I also received a reference from a former girlfriend, Laura Bryan, which I have had regard to.

27You left formal primary schooling during Year 7 and thereafter were home schooled by your mother until approximately aged 14.  Thereafter you worked doing labouring work and then as an apprentice builder.  You ceased this work and then did an apprenticeship as a plasterer which was not completed because you lost your driving licence.  But you continued to work as a plasterer.

28I was told and accept that you have long had a problem with alcohol drinking to excess.  I accept you have improved somewhat in this regard over the last three years or so.  You have also had a long-term addiction to drugs.  I was told and accept you have had an addiction to methamphetamine for around five years prior to this offending.

29You have two children from two separate relationships.  Your son, Evan, was born when you were aged 19 and although the relationship with his mother was a casual one you nevertheless made efforts to be involved in the life of Evan up until about two years ago when you lost contact caused by your drug use.

30Your second child, a daughter, was born in 2009 and again you played a role with her for about a year until you were jailed in 2010.  At that time you were jailed for five years with a non-parole period of three years after pleading guilty in this Court to a charge of intentionally causing serious injury to your then partner.  You smashed a glass over her head and you stabbed her in the neck with a piece of glass.  You were paroled in 2013 but breached and you were reclaimed by the Parole Board and you served your sentence being released in 2015 at which time you went to live in Broken Hill with a new partner.  That relationship ceased in 2018 and you commenced living with another woman with whom you were living when this offence occurred.  Both you and your partner at that time were then methamphetamine users.

31There were no psychiatric or psychological reports tendered in relation to you.  Ms Brennan told me you have been diagnosed as suffering attention deficit disorder as a child for which you were prescribed Ritalin.  I was also told you have been diagnosed as suffering a personality disorder.  Whilst on remand in late 2019 you were prescribed mirtazapine.

32Your life appears to have been ruined by your previous addiction to alcohol and your drug addiction.  You have been given dispositions for past offending designed to assist you rehabilitate but these have not been successful.  You have previously received two Community Corrections Orders both of which you have breached.  Your prior convictions reflect a number of dishonesty type offences often associated with drug addicted offenders.  Ms Brennan told me and I accept you have been hampered in this regard by a lack of long term stable housing, and negative drug using peer associations.

33Regrettably, I think your chances of rehabilitation are poor.

34When you were remanded in custody in July 2020 you were subjected to quarantine in custody because of COVID-19.  Whilst in custody, COVID-19 has made your time in prison more burdensome for all prisoners.  Exercise has been restricted as has movement around the prison.  Visitors have been restricted and prisoners have not been able to engage in the same kind of programs as existed for them prior to the COVID-19 pandemic.  I do not accept that delay is a matter that needs to be taken into account in the sentencing of you.  Had it not been for your further offending whilst on bail for these matters you would have been on bail for these matters and not affected by COVID-19 in prison until I remanded you.  I do take into account the fact that COVID-19 restrictions in prison will make your sentence more burdensome.

35In passing sentence upon you I have taken all of the matters submitted by your counsel into account.

36On Charge 1 you are convicted and sentenced to a term of imprisonment of three and a half years.

37The sentence will commence on 29 March 2021.

38I declare there has been 139 days pre-sentence detention already served and direct that 139 days be reckoned as having been already served under the sentence passed this day, be entered into the records of the court and be deducted administratively.

39I direct you serve a minimum term of 28 months' imprisonment before being eligible for release on parole.

40On Charge 2 you are convicted and discharged.  Had it not been for your plea of guilty at the earliest opportunity I would have imposed a fine of $500.00.

41On the summary charge you are also convicted and discharged..

42HIS HONOUR:  Very well.  Are there any other matters, Ms Brennan?

43MS BRENNAN:  No, Your Honour.  Not at all.

44HIS HONOUR:  What about you, Mr Armstrong?  Any matters from your point of view?

45MR ARMSTRONG:  No, Your Honour.

46HIS HONOUR:  Very well.  Thank you both.

47MR ARMSTRONG:  If Your Honour pleases.

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