Director of Public Prosecutions v Becherer

[2022] VCC 1952

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-01082

DIRECTOR OF PUBLIC PROSECUTIONS

v

CORY BECHERER

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	La Trobe Valley (Plea) & Melbourne (Further Plea and Sentence)
DATE OF HEARING:	6 October 2022 (Plea) & 19 October 2022 (Further Plea)
DATE OF SENTENCE	9 November 2022
CASE MAY BE CITED AS:	DPP v Becherer
MEDIUM NEUTRAL CITATION:	[2022] VCC 1952

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Trafficking in a commercial quantity of methylamphetamine – knowingly deal with proceeds of crime – handle stolen goods – commit indictable offence on bail – relevant criminal history – modestly positive prospects of rehabilitation – plea of guilty at the earliest reasonable opportunity – impaired mental functioning – application of Verdins limbs

Legislation Cited:         Sentencing Act 1991

Cases Cited:R v Verdins [2007] VSCA 102; Worboyes v R [2021] VSCA 169

Sentence:  Total effective sentence of 42 months’ imprisonment with a non-parole period of 28 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti (Plea) Ms C. Spiteri (Sentence)	Office of Public Prosecutions
For the Accused	Ms K. Sheridan	Slink & Keating

HIS HONOUR:

1Mr Becherer, I will tell you my proposed sentences before I explain how I arrive at them.  I propose to sentence you to a total effective sentence of 42 months' imprisonment and sent a non-parole period of 28 months' imprisonment. I will declare the 414 days of your pre-sentence detention as time served under my sentences.

Introduction

2You have pleaded guilty to a charge of trafficking in a commercial quantity of methylamphetamine, knowingly dealing with the proceeds of crime and handling stolen goods.  You have also pleaded guilty to a summary offence of committing an indictable offence while on bail.

Circumstances

3On 21 September 2021, police members executed a search warrant at your home.  You were found in the backyard.  The police searched you and found;

(a)   $905 in cash.  This is the subjection of Charge 2;

(b)   Two zip-lock bags containing rubber bands;

(c)   a mobile phone.

4After searching the backyard, the police found a backpack, which had been put over the fence into the neighbouring property at Stewards Street.  Inside the backpack, there were:

(a)   a set of scales;

(b)   a blue magnet lock box containing $12,000 in cash divided into bundle of $1,000 a tied with rubber bands matching those found in your possession.  These monies are also part of Charge 2; and,

(c)   a stolen Victorian registration plate with the number 911 935.  This constitutes Charge 3.

5More importantly, they also found in the backpack an Australia Post bag tied with rubber bands.  Inside this bag was a zip lock bag containing white powder, deal bags and a plastic scoop. 

6The white powder was later analysed and had found to be 147.6 grams of methylamphetamine, 81 per cent purity.  This is an amount greater than twice the threshold of a commercial quantity for the drug in question.  This constitutes Charge 1.

7You were arrested and later interviewed.  You exercised your lawful right and answered no comment to the questions asked of you. 

8At the time of committing the above offences you were on bail, having been granted bail on 20 February 2021.  This constitutes the summary offence of committing an indictable offence while on bail.

Victim Impact Statement

9Given the nature of these offences there are no victim impact statements.

Criminal History

10Between 14 August 2013 and 14 January 2020, you have appeared in a criminal court on eight occasions, and have been found guilty or convicted or 91 offences. 

11You have received six sentences of imprisonment.  The longest sentence you have received is 15 months' imprisonment, imposed on 14 January 2020.  This sentence was the combination of sentences on discreet offences and the cancellation of a drug treatment order.

12Bearing in mind the nature of Charge 1, you have previous convictions for trafficking ecstasy in 2014, trafficking methylamphetamine in 2017, attempted trafficking of methylamphetamine in 2018, and trafficking methylamphetamine in 2019.

13Plainly specific deterrence is an important sentencing consideration.

Pre-Sentence Detention

14Excluding today you have spent 414 days in custody in regard to these offences.

Personal Circumstances

15You are now 27.  You were born and raised in Warrigal.  You have an older sister.  Your parents separated when you were 10 and apparently, they did so after you overheard your father on the phone, speaking intimately to your mother's best friend and told your mother of the conversation. You carry guilt over their separation.  Following the separation, you stayed with your mother.

16You left home at 14 and led a transient lifestyle, sometimes returning to your family.  When you were 19, your mother moved away from you and your sister.  Your sister attempted to “mother” you, but you rebelled and pushed her away.

17For more than two years now, you have been in a relationship with Sharni Clark.  You and she have a very young son, Aykah.  During the pregnancy, you were advised the foetus had a cyst and fluid on the brain.  Since you were in custody, you could not support Ms Clark in this uncertain state.  Since his birth, you have been unable to see your son face to face. 

18Ms Clark has a 14 year old daughter from another relationship, who treats you as her father. Ms Clark does not now abuse drugs and, on your release from custody, you intend to live with her and her parents in Korumburra.

19Your relationship with Ms Clark and her family has enabled you to rebuild your relationships with your mother, sister and, to a much lesser extent, your father.

Education and employment

20You were bullied in your primary and secondary schooling.  When you retaliated in Year 8, you were expelled.  Year 8 represents the extent of your formal education.  However, you are a qualified butcher, having successfully completed an apprenticeship.  In fact, you were so good that you were the best apprentice butcher in Victoria when you were 16.  You worked as a butcher until you were first taken into custody in 2020.  Upon release from custody, you would like to open your own butcher's shop.

Medical History

21In 2015 and 2018, you were injured in two motor vehicle accidents.  Despite being injured in the first you did not seek medical treatment.  With the second, you were hospitalised.  You were unconscious for days following this accident.  You discharged yourself early from hospital.  You have been in other motor vehicle accidents, accompanied by numerous losses of consciousness.

Drugs and alcohol

22At 14, you used methylamphetamine and dabbled with that and other drugs until you were 17.  By 17, you were mainly using methylamphetamine.  At its height, you were using several grams daily.  Abstinence has been a problem.  Your longest period was six months during 2020 while you were on parole.  You relapse due to stress.  You last relapsed in 2021, after your partner miscarried.  You currently take methadone, 100 milligrams daily.  You take a psychotropic drug to help with your sleeping.

23You have used your time in custody profitably.  You are a model for other prisoners.  You have undertaken drug and alcohol courses, you have successfully completed tertiary courses.

Psychologist

24Aaron Cunningham is a psychologist.  At the request of your solicitors, he interviewed you on 24 September 2022.[1] 

[1]Report dated 24 September 2022

25Dr Cunningham diagnosed you as suffering from Post-Traumatic Stress Disorder, due to seeing your friend die in a motor vehicle accident and perpetuated by your own motor vehicle accidents and witnessing suicides in gaol.

26In Dr Cunningham's opinion, this disorder causes you difficulty coping with additional stress in your life.  Although your drug abuse is the main contributor to your offending, your untreated disorder is a significant contributor to your drug abuse.

27While in custody, your disorder shows itself in disturbed sleep, irritability, outbursts of anger and reckless and self-destructive behaviour.  These symptoms render your imprisonment more difficult than for someone without those symptoms. 

28Being imprisoned will aggravate the symptoms of your disorder and increase the risk of relapse into drug usage. 

29Both your addiction and the disorder require treatment.

Neuropsychologist

30

Sami Yamin, is a clinical neuropsychologist.  At the request of your solicitors,

Dr Yamin interviewed and tested you in early October 2022. 

31Dr Yaman estimated your pre-morbid intellectual functioning was in the low average range.  At present, he found you functioning in the extremely low range, which is a decline from the pre-morbid estimate.  He attributed this decline to the effects of a mild brain injury due to car accidents.  Your current intelligence quotient is 61.  There were considerable differences between the various areas which make up your intellectual functioning.  In particular, you are now severely deficient in your ability to remember, to learn, executive function, speech attention and impulse control.  For you, executive function involves planning and the ability to solve problems.

32At the time of committing these offences, Dr Yamin considered your judgement and lack of inhibition were due to your brain injury.  These deficiencies were worsened by your drug taking.

33Noting the trauma you have experienced through car accidents, Dr Yamin recommended counselling from a clinical psychologist specialising in trauma.

34Since you use drugs to suppress the effects of trauma upon you, you require intensive drug and alcohol rehabilitation.  Although you have abstained in custody, according to Dr Yamin, you remain a risk because of the reason you use drugs.

References

35Amy Devries is a youth justice case manager with the YMCA Bridge Project which operates in the Ravenhall Correctional Centre.  On 20 September 2022, she wrote about you. 

36Ms Devries noted the emotional and mental support you give to new prisoners in your unit.  She describes you as a highly personable individual, committed to being a positive mentor to and a role model for other prisoners with your focus on their rehabilitation. 

37She notes your remorse and your involvement in substance abuse programme, 'Ice and Me'. 

38On that note, in July 2022, you completed a drug and alcohol exit preparation programme of less than 14 hours' duration.

39Sharnie Clark is your partner, you have been in a relationship with her for more than two years.  She speaks of the fact of remand and the lack of support from family and friends forced you to acknowledge your destructive behaviour and ruthless drug dependence.  Additionally, the fact of you becoming a father and missing your son's birth forced you to acknowledge that your life led to imprisonment. 

40She speaks of her strong support for you and that of her family.

41Vincent Gargaro owns a landscaping and property maintenance business.  He knows you and your family and is prepared to offer you full-time employment after you are released from prison.

42

Margaret Clark is the grandmother of Ms Clark.  She speaks of Ms Clark's drug usage last year, but since the birth of her child, she has proven to be an excellent mother.  Margaret Clark has spoken to you while you have been in prison and you have told her of your activities there.  She speaks of the support you have from

Ms Clark's family.

Discussion

Purposes

43Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

44Each of the offences to which you have pleaded guilty are commonplace.  General deterrence and denunciation are important sentencing considerations. 

45Although I later consider one of the propositions in Verdins[2] case has some application in relation to general deterrence, it is limited because of the nature of the offending in Charge 1.  Impulsivity and disinhibition would play little part in the commission of that offence.

[2]R v Verdins [2007] VSCA 102

46Your criminal history raises specific deterrence as an important sentencing factor.  You have a lengthy history for someone of your age.  I have identified four previous offences involving trafficking or attempted trafficking of a drug of dependence.  For the same reason, protecting the community from you is an important sentencing consideration.  The community cannot tolerate such offending from the damage it does to its members, and I am specifically speaking in relation to Charge 1.

Maximum Penalties

47The maximum penalties for these offences are:

(a)   trafficking in a commercial quantity of a drug of dependence – 25 years' imprisonment;

(b)   knowingly dealing with the proceeds of crime – 15 years' imprisonment;

(c)   handling stolen goods – 15 years' imprisonment; and,

(d)   committing an indictable offence while on bail – a fine of 30 penalty units or three months' imprisonment.

48Charge 1, contains a Category 2 offence. That means I must make an order under Division 2 of Part 3 of the Sentencing Act, other than a sentence of imprisonment and a Community Correction Order.  The orders under that Division involve forms of custody.  There are exceptions to that requirement but none applies to you.

Guilty Pleas

49Your preparedness to plead guilty to these charges existed before the hand up brief was served upon your solicitors.  That is, before your lawyers could assess the strength of the prosecution case and advise you accordingly.  In terms of the timing, these pleas were indicated and subsequently entered at the earliest reasonable opportunity of a process starting with the laying of the charges and ending theoretically, in a trial. 

50They are evidence of your remorse for the offending.

51By pleading guilty to the charges, you have avoided a trial.  You have saved the time and expense of a trial.  You have allowed other trials to be listed earlier than would otherwise be the case.  You have spared witnesses the burden of giving evidence in a trial.  These considerations have what is described as a utilitarian benefit to the criminal justice system.  The value of that benefit has been enhanced in the time of the pandemic.

52At the present time, pleas of guilty deserve a granted discount on sentence.  Why this is so, was explained in Worboyes v R[3] where the court said:

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

[3][2021] VSCA 169 at 35

53Your pleas of guilty require a significant discount on the sentence.

Rehabilitation

54In Ms Clark, you have a partner who supports you.  You and she have a young child.  Ms Clark, has a daughter who views you as her father.  You have now and undoubtedly did then the support of your partner's family.  But those matters did not prevent you from offending.  You have a trade and, it appears you are good at it.  Upon release, you intend to return to it.  There is other support through your mother and sister. The real issue is your drug addiction.  This is a long-term addiction, driven by your need to use drugs to suppress the emotional effects of the trauma you have suffered physically and experienced psychologically.  Your letter and your participation in drug and alcohol and educational programmes are a positive sign.  The assessment of Dr Cunningham and Dr Yamin provide a much better picture of you psychologically.  It is unlikely you could stop using drugs unless these psychological issues are addressed successfully.  That requires long-term professional help.  Although you counsel submits the failure of the drug treatment order was due to where you were living, nevertheless it failed and it represented the best chance then for a person in your position to overcome an addiction which leads to criminal behaviour.

55I accept you are remorseful for your offending and the remorse translates into a determination not to reoffend.  Despite your remorse and the other factors outlined above, whether you are able to rehabilitate yourself depends on the success of professional help.  With the factors identified there is a real prospect of that reoccurring.  At present your prospects of rehabilitation are modestly positive.

Verdins

56You rely on several of the propositions set out in the case of R vVerdins[4].  The injury to your brain and the symptoms of your Post-Traumatic Stress Disorder work together to reduce your functioning.  The disorder can be seen as the prime mover behind your drug addiction.  I agree that your moral culpability is reduced due to the effects of the injury and the disorder, which together impair your mental functioning.

[4][2007] VSCA 102

57As to proposition 2 of Verdins' case, in the context of Charge 1 in particular, it cannot be used to avoid a sentence to a term of imprisonment, nor can your impaired mental functioning affect the condition in which it is served.  I will not see the proposition as affecting the length of a term of imprisonment.

58The Director did not argue against the application of proposition 3, relating to general deterrence.  The co-existence of the brain injury and the Post-Traumatic Stress Disorder, means that there are fewer persons who would identify with you and commit the like offence to that in Charge 1.  This has a moderating effect on the important consideration of general deterrence.

59As to proposition 5, I agree a sentence of imprisonment would weigh more heavily on you than it would for a person of normal health.  I do not see any useful conclusion to the contrary can be drawn from your earlier periods of imprisonment and your ability to negotiate them or your benign period of parole.  I do not consider the material justifies the strict requirements of proposition 6

Time in Custody

60While you have been in custody, custodial facilities have introduced a range of restrictions upon inmates due to the pandemic.  These restrictions are upon movement within the facility, contact with family and friends and educational and other programmes.  Nevertheless, during this year you have been active in undertaking courses including educational courses.

61Your counsel submitted a sentence of imprisonment together with a Community Correction Order is an appropriate sentence in your case.  Even if I were legally able to do so, I do not consider the amount of available imprisonment under such an order is sufficient punishment for Charge 1, and certainly not on the basis submitted by your counsel of time served and a Community Correction Order.

Sentence

62On Charge 1, a charge of trafficking in a commercial quantity of a drug of dependence, I sentence you to 39 months' imprisonment.

63On Charge 2, a charge of knowingly dealing with the proceeds of crime, I sentence you to 12 months' imprisonment.

64On Charge 3, a charge of handling stolen goods, I sentence you to one months' imprisonment.

65On the Summary Charge 11, a rolled-up charge of committing an indictable offence while on bail on three occasions, I sentence you to two months imprisonment.

66The sentence on Charge 1 is the base sentence.  Three months of the sentence on Charge 2 will be served cumulatively upon the base sentence.  The other sentences are to be served concurrently.  The total effective sentence is 42 months' imprisonment.  I will set a non-parole period of 28 months' imprisonment.

67I declare the 414 days of pre-sentence detention as time already served under my sentences today.

Forfeiture Order

68I will make the forfeiture order in the terms sought in the draft order.

s6AAA Declaration

69Absent your pleas of guilty, I would have sentenced you to 60 months' imprisonment with a non-parole period of 40 month's imprisonment.

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