Director of Public Prosecutions v Bensch

[2019] VCC 1244

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00724

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BENSCH

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	10 July 2019
DATE OF SENTENCE:	9 August 2019
CASE MAY BE CITED AS:	DPP v Bensch
MEDIUM NEUTRAL CITATION:	[2019] VCC 1244

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J.Wiegl	Office of Public Prosecution
For the Accused	Mr. M. O'Brien	GTC Lawyers

HIS HONOUR:

1Jason Bensch, on 12 December 2018, police searched your home in Armstrong Creek.  The police had information concerning a package addressed to you that was intercepted at the Melbourne Airport. 

2During the search of your house, the police found 497.7 grams, that is almost half a kilogram of ketamine at 91 per cent purity.  Also found was 325 whole and five half of alprazolam tablets.  This drug is commonly known as Xanax. 

3It is a prescription drug often mentioned in court proceedings by accused who use black market Xanax tablets.  It is often said that this drug is a reason for their erratic criminal behaviour.  The point is, this drug is concerning if not taken under medical direction.  You had no lawful reason to have this drug, much less in large numbers.  You have been charged with, and pleaded guilty to the possession of that drug, and that crime alone and I will impose a just and appropriate penalty for this offence and no other, such as trafficking of that.

4Police also found steroids and you have pleaded guilty to possession of those drugs of dependence.  Also found were the usual accoutrements of drug trafficking, such as digital scales and clear, resealable bags. 

5You were arrested and interviewed by the police.  You admitted ordering and receiving Ketamine, selling ketamine in the resealable bags.   You also spoke of getting Xanax by orders over the internet and steroids, more or less in the same way.  You said to the police that there were no other drugs that had been ordered and had not yet been received to date.  You were charged and then released on bail.

6Despite what you had said about there being no other orders pending, what then followed was that the police received further information about suspicious packages addressed to you. 

7They re-attended your address two days later on 14 December 2018.  The police observed a package being delivered to your address.  Within moments, you were observed to come out of your house and collect that package. 

8The police then again searched your house.  The package contained 499.2 grams of Ecstasy, virtually half a kilogram at 81 per cent purity.  Also, another package sent from a Victorian address, contained 14.1 grams of cocaine at 40 per cent purity.

9Further items to enable trafficking of the drugs were found.  The search this day located $10,550 in cash, that is, 211 fifty dollar notes.  You were arrested and interviewed saying the cash was from legitimate labouring work, something you now acknowledge was untrue.  You admitted that the ecstasy was for trafficking, but the cocaine was for your own use.

10The penalties for trafficking made up in your case as possession for sale, is 15 years.  As noted the amounts were 497.7 grams of Ketamine and 499.02 grams of MDMA. 

11As I have said, the quantity you had was just a minute amount, under half a kilogram or 500 grams, a more serious maximum penalty applies if the quantity was 500 grams.  The purity of your drugs was very high but the prosecution has accepted your plea of guilty to the crime of trafficking simpliciter, as it is often called.

12Drug offences and the consequential penalties are related to the quantities involved.  In respect of the crime of trafficking in a commercial quantity, the Court of Appeal has encouraged sentencing judges to express the quantities involved as multiples of the threshold. 

13There is, for the ketamine and ecstasy that you had, a quantity which enlivens the crime of trafficking.  The trafficking quantity is just three grams.  Thus, in your case you had ecstasy at 166.3 times the trafficable quantity, and ketamine at 165.6 times the trafficable quantity.  There can really be no higher multiple before the crime becomes a different one, being trafficking in a commercial quantity. 

14Thus, by reference to quantity an all important factor in assessing gravity, yours is an example of trafficking simpliciter at the highest end. 

15Your involvement in the trafficking of ecstasy, and by and large, the ketamine was purely for profit.  You were and are properly described as an entrepreneurial drug trafficker prepared to source drugs from overseas for distribution into the Australian community.  This is, on any measure, serious criminality. 

16The other drugs, tablets and steroids that you had, are also concerning, revealing your disdain for the drug laws of this State.  The significant amount of hidden cash is revealing of your entrepreneurial drug selling operation.

17Mr Bensch, you are still a young man, now 25.  Importantly for my assessment of what the future holds for you, I note that up until this point you were of good character.  The fact that you have no relevant prior matter is a matter of real significance.  This, as your first offending, sees you to be dealt with for serious and well-organised crimes, thus to an extent I cannot give you the usual benefits for first time offenders. 

18To deal in more detail with your personal circumstances.  You were raised in a good family in the Western District.  I will refer to your mother's important evidence shortly.  You did well at school both academically and in sports before moving into tertiary education in 2012.  You studied Civil Engineering at Deakin University, moving first to College residency and then into share homes in Geelong.  You finished your degree, but as I understand it, you have not practised as an Engineer. 

19In the first years in Geelong, you maintained a long term relationship with your then girlfriend from school days.  This relationship ended in 2016.  You met another woman who introduced you to drug use.  You had become, it seems, obsessed with working out in the gym and were taking steroids.  With your new girlfriend you took up using ketamine, and your lifestyle and the like changed markedly.  You became distant from your family as your mother outlined in her evidence.  You also took to using cocaine. 

20An overdose of ketamine, or a reaction to what you thought was ketamine, saw you hospitalised  in September 2017.  Your family were in shock, however your girlfriend's influence at the time was greater than that of your concerned parents, so despite you having this overdose, you resumed using drugs. 

21After ending the relationship which I note was marked by violence and aggression directed to you, you decided to do something to recover your health and stability.  You researched and then went to a rehabilitation facility in Noosa Heads.  You funded this yourself. 

22Also you found it a positive experience, on your return to Geelong, you again fell back into drug use.  Fortunately for your long-term prospects, you met another young woman who, despite your predicament, remains supportive of you. 

23Although you were in this relationship when you sought out the drugs that were found in your house, it seems to me that she is a positive influence on you.  She was unaware of your fall back into drug-use and trading at the time.

24I will deal with other personal mitigatory matters shortly.  They mostly flow from what your family and friends have noticed as to your changing attitude while you have been on remand. 

25I mention important other matters in mitigation, firstly, being your early plea of guilty.  Your sentence will be significantly less because of your plea of guilty.  Your plea of guilty and other evidence from your mother has established that you have, 'woken up to yourself' and are remorseful. 

26This is an important foundation for permanent reform.  Your first efforts at getting away from drugs before your arrest failed relatively quickly.  You will need steely determination and long-term help upon your release. 

27At your age and with your previous character, your rehabilitation is important, and overall there is hope that you will come good.  It is, of course, entirely up to you Mr Bensch.  There is a deal of evidence that gives me confidence that you will reform. 

28Your own letter to your parents shortly after your arrest and remand is insightful and expresses genuine remorse.  It is a solid basis for me to conclude that your prospects are generally very good.  You wrote: 

'Just thought I'd write this letter to apologise for my irresponsible behaviour over the past few years, in particular the last 18 months.  Not only that, I want to explain how I'm going to change with my new perspective of my future life.  Words can't begin to explain how sorry I am for causing you to feel a world of pain and heartache both with me in hospital, to me behind bars in gaol and everything in between.  I'll never fully understand the grief and disappointment that I've caused you and the family, for that I am truly ashamed.  It will take me a very long time to forgive myself and the stupid decisions that caused my life to turn out this way.  I know saying sorry doesn't mean much anymore.  That is why I want to prove myself through my actions when I get out of gaol in a hope that one day you will both be able to forgive me.' 

You concluded the letter:

'At the end of the day, actions do speak louder than words.  I can't wait to show you my appreciation of everything you've done for me, by making major changes in my life which will hopefully mean that one day you can both be proud of me again.' 

29Your also wrote to your girlfriend within a few weeks of your remand, expressing your same at what you had done and how frightening and foreign prison was, and how you were committed to changing your life completely. 

30You wrote a letter of remorse to the court which in my estimate, was a more genuine expression than some I have read in other cases.  Your girlfriend wrote a letter to the court as well, which is tendered in the plea. 

31In that letter she speaks of your changed attitude, the dedication to not fall back into the drug world upon your release, but to get legitimate work and establish a house and perhaps a family with her into the future. 

32She wrote, at the end of her letter the following; that you, 'have mentioned that how being in the environment in remand, you understand what you were doing has severe impact on others and how drugs really impact people negatively, and upon yourself as well.'

33She says that you know that you need a group of positive friends around him and you are looking forward to a career, that you enjoy to support yourself and your future family.  She says that you will have her support in the future, that is crime-free, and that she knows that you can, full of positive changes, make a contribution.

34You have close friends, not connected with the drug-world.  Mr England has known you for a number of years.  He says that he has seen you go through intense hardship, battling depression, being in an abusive relationship that hurt your psychologically and you were living away from your support network. 

35He says that he thinks that you are trustworthy and honest at the heart of it, and will come good if you pay attention to your rehabilitation and gain employment.  Importantly, he says, in his role as running a building company in Geelong, 'I will be offering a fulltime job in the future.'

36Another friend of yours which you have known, Mr Dylan, says that he received letters from you or messages that he expressed this way.  This is you speaking to him. 

'It's pretty damn tough in here, especially the mental side of things.  I can safely say this experience has definitely scared me off continuing my previous lifestyle and maybe this needed to happen in order for me to learn my long overdue lesson.' 

37There are other like-letters from your friends.  You have been suffering from depression and were medicated.  You were referred to a treating psychiatrist who saw you once before your remand.  It seemed that there were more complex mental health issues at play, was outlined in Dr Black's short letter to your lawyers.

38Your counsel submitted that your prospects for reform were excellent, based in large part on the matters that I have just spoken of.  Your counsel's submission was that a sentence involving imprisonment and a community corrections order was the appropriate disposition. 

39The prosecution submitted that, that is, on the day of your plea, that a sentence of imprisonment of more than you had done on remand to that point, together with the community corrections order, was open in this case.

40With respect to drug trafficking and possession of drugs and the proceeds of crime matter as well, all the matters that you have pleaded guilty to, the principle sentencing purposes are denunciation and deterrence especially to others who may be seduced into peddling drugs by the promise of profits. 

41The adverse impact of addictive drugs on our community is significant.  Those that seek to profit by selling drugs must understand that the consequences for them will be stern punishment, usually involving significant gaol terms. 

42That said, your rehabilitation remains important, but it must be balanced with those other sentencing considerations and purposes.  I pointed out you remain relatively young and I consider on the evidence that I can be confident you will permanently reform.  You have been frightened by prison and have learnt important, hard lessons.  The experience has and will continue to operate as a deterrent to you personally. 

43While ordinarily, drug trafficking by possession for sale of the amounts of drug that you had would see a significant term of imprisonment, I must and I have considered the important changes in our law, both in the legislation and in the interpretation of the legislation by our Court of Appeal. 

44The Court of Appeal in the important guideline decision of Boulton v The Queen made clear that imprisonment is not necessarily conducive to rehabilitation, in fact, it most often is not. 

45The court made the point that Parliament by introducing a new regime of community corrections order placed emphasis on rehabilitating offenders that could be promoted or enhanced by community corrections order.  That said, the court in Boulton made clear that a community corrections order could be itself a significant form of punishment via unpaid work and supervision.  The value of a community corrections order was that punishment could occur simultaneously with targeted rehabilitation which is unavailable in the prison. 

46The Court of Appeal made it clear that what it called the new sentencing landscape, the sentencing discretions that sentencing judges such as myself have, was to impose community corrections orders alone or in combination, was broad enough to be contemplated for quite serious crimes that may ordinarily, in earlier times, have seen the imposition of lengthy terms of imprisonment. 

47The sorts of crimes mentioned by the Court of Appeal that may now attract a community corrections order which formally would have attracted medium terms of imprisonment, were crimes such as aggravated burglary with the maximum term of 25 years; intentionally cause serious injury, with a maximum term of 20 years, even some sex offences with maximum terms of 25 years. 

48Thus, there can be circumstances where a community corrections order for serious crimes is open.  This is still the case, notwithstanding further changes to the legislation by Parliament and other appellant decisions by the Court of Appeal applying or expressing some cautions as to the use of the sentencing option of a community corrections order. 

49I also take into account the High Court decision in Dalgleish giving primacy to the approach of individualised sentencing.  Thus, if the circumstances  are such that the appropriate punishment and rehabilitation can occur or be promoted simultaneously by a community corrections order in combination with imprisonment, then I ought consider that option.  Indeed, I cannot impose gaol unless no other sentencing options could ensure all sentencing purposes are properly met. 

50In this case, given what you have said and done and planned to do, to change and ensure that there is no further drug use, your commitment to reform appears to be genuine and solid. 

51The support of your girlfriend and family is important for you to resettle in the community and actually make steps in the community to continue rehabilitation and resist temptation.  The offer of work and your plans for further study are important as well.  It seems to me this is a moment to seize. 

52You have had a significant period of incarceration, being as I understand it, two days short of eight months.  An onerous community corrections order can, in my view, meet the sentencing purposes in this case. 

53As I have said, your plea of guilty is an important matter in mitigation, meaning the penalty is less and indeed, combined with other things, it is a sentence of a different kind that I will now announce and impose. 

54What I intend to do is impose a sentence in terms of days so that the sentence is tailored and constructed so as to meet the time that you have served in custody thus far. 

55Mr Bensch, for committing the crime of trafficking in a drug of dependence, being ketamine, you are sentenced to 150 days imprisonment.  There will, also with that crime, a community corrections order which I will announce shortly.

56For committing the crime of trafficking in Ecstasy, you are sentenced to 150 days imprisonment.  There will be a community corrections order in relation to that. 

57In respect of the crime of the possession of the Xanax drugs, you are sentenced to 28 days imprisonment;

58In respect of the possession of cocaine and the deal in the proceeds of crime and the possession of steroids, you will be sentenced to a community corrections order. 

59In respect of the first charge, trafficking ketamine, 50 days, that is 150 days that I imposed, together with the 28 days that I imposed on the crime, possession of the Xanax, will be cumulative upon each other, giving a total effective sentence in terms of days of imprisonment of 238 days. 

60You will also be required to be on a community corrections order.  It is going to be lengthy.  It is 28 months giving a whole period of three years of supervision, both imprisonment and in the community.  The work component of that will be significant.  That is because there must be punishment that's proportionate to the gravity of the crime that you committed. 

61The entire amount of work required is 350 hours.  I will also require you to do various programs, firstly you must undergo a treatment and rehabilitation for drug abuse. 

62You must also undergo treatment and rehabilitation to involve programs that are directed at avoiding reoffending.  These will be provided or details provided by the Office of Corrections. 

63In respect of those programs, any hour that you do on any of those programs can be counted as part of the unpaid work and deducted.  You will also have to be under the supervision of the Office of Corrections for the whole period. 

64Thus, the sentence that I have imposed is one of 238 days together with, for all the offences, a community corrections order for 28 months, with the conditions that I have just outlined. 

65Had you pleaded not guilty to these offences, and been found guilty of them, I would have imposed a sentence of two and a half years with a minimum term of 20 months.  Is there anything else required?

66MR WIEGL:  Ancillary orders, Your Honour.

67MS O'BRIEN:  Not opposed, Your Honour.

68HIS HONOUR:  Thank you.  The orders required, or the application made by the prosecution is you provide a forensic sample and as a consequence of the seriousness of the circumstances of the crimes, together with the fact that granting the order is in the public interest, I intend, for those reasons, to accede to the application of the prosecution and order that you provide a forensic sample.  That will be a scraping from the mouth that will gain sufficient biological material that your DNA can be extracted. 

69What I need to tell you is that if you at the time that the authorities wish to take the scraping from your mouth for the purpose of getting the DNA, if you do not cooperate, they are authorised to use reasonable force to enable that procedure to occur.  What I also need to tell you is that you must get down to the police station within a period of time to have that forensic procedure undertaken; effectively is this, the window will open in four weeks' time, so four weeks pass, and then window opens, it likewise is four weeks for you to get to the police station and have that sample taken. 

70The most important thing I have not done perhaps is to - just overlooked it briefly - the sentence that I have just imposed is 238 days. 

71It has been calculated that you have done 238 days already in prison.  That figure having been calculated, or reckoned, I declare that you have done 238 days of the sentence that I have imposed, being the entirety of the sentence of imprisonment that I have just imposed. 

72I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have done each day of the sentence I have just imposed.  An application is being made for a forfeiture of various items being mainly computers and the like.  I make that order.  There is also an application for the forfeiture of other material mainly related to drugs.  I make that order too. 

73MR WIEGL:  Your Honour, may I just check the cumulation orders.

74HIS HONOUR:  Yes, 50.

75MR WIEGL:  Fifty plus ‑ ‑ ‑ 

76HIS HONOUR:  So 150 days is the base sentence on the ecstasy. 

77MR WIEGL:  Yes.

78HIS HONOUR:  Fifty days of the ketamine, 28 days on the Xanax and that's entirely - 38.

79MR WIEGL:  On my calculation that's ‑ ‑ ‑ 

80HIS HONOUR:  Needs to be 38, I'm so sorry.  I thought the calculation was to 28.  I apologise for that.  Twenty eight days on the Xanax is wholly cumulative, in respect to the proceeds of crime, I impose a sentence of 30 days and make ten days cumulative upon the sentence I have just imposed.  Does that make sense?

81MR WIEGL:  So there's 150 days.

82HIS HONOUR:  Thirty days on deal in the proceeds of crime.

83MR WIEGL:  Yes, Your Honour.

84HIS HONOUR:  Ten of which are cumulative upon the whole sentence.

85MR WIEGL:  Yes.

86HIS HONOUR:  Two hundred and thirty eight days. 

87MR WIEGL:  Thank Your Honour.

88HIS HONOUR:  I make it clear that this is tailored.  Anything else required?

89MR O'BRIEN:  Your Honour, Mr Bensch will need to sign that order.

90HIS HONOUR:  Yes, it will be all provided to him.  Mr Bensch the document will be produced shortly.  I'll read through the conditions.  You will need to sign it.  I think in all likelihood you will need to return to the cells for them to just check and calculate and get approval there is nothing else holding you in custody. 

91Mr Bensch, the order that the community corrections order is 28 months.  It starts on the completion of your prison term which ought be today. 

92The mandatory terms that apply to everyone on a community corrections order I will outline.  The bulk of them are about cooperation and providing information.  But the first of those is not that.  It is the following matter which I ask you to consider very seriously. 

93You must not commit another offence for which you can be imprisoned during the time that this order is in force.  So if you commit an offence which might go to the Magistrates' Court and be dealt with by some means or other, a fine or whatever, but it is a crime that can be punished by imprisonment, that is almost every single one you can think of, then you will come back before me and those that might think I am naïve letting drug traffickers out after eight months, I will remember all that and the mercy that is now shown will not be repeated, you will go back to gaol. 

94So do this order.  Do not commit any other offence.  The things I need to point out that involve your cooperation are, you must comply with obligations and requirements under the sentencing regulations, that will be identification things that you have to cooperate with providing details, having your photograph taken. 

95You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre here in Geelong, the address is here, within two clear working days of the order starting. 

96You must let the community corrections officer's know within two clear working days if you change your address, or your job.  You must not leave Victoria without getting permission to do so from the Secretary and you must obey all lawful instructions from the Secretary.  So they apply to everyone. 

97In addition to that, the conditions that apply specifically to you are that you must perform 350 hours of unpaid community work over that 28 months.  That is a long period of - that is a lot.  It is because of the seriousness of the crime. 

98You must be under supervision of a community corrections officer, you must undergo assessment and treatment for drug abuse and dependency, you must participate in other programs that address factors relating to offending as directed by the Regional Manager. 

99Now, all those hours as I said that you do on those programs can be counted as part of the 350 hours.  I have not made an order that you undergo treatment and assessment for any mental health problems, but you took it up yourself with, through the medical, your doctors and the like and you may need to take it up again. 

100It is a matter that you should think about carefully.  No-one is ever quite the same after prison.  If you sign this document then that brings the matter to an end.  Can your instructor take that down. 

101MS O'BRIEN:  Yes, Your Honour.

102HIS HONOUR:  The document that is being signed, I just overlooked that the CCO applied to every single charge and we have only - we have done it to every charge, bar Charge 3, so we will just fix that.  Sign it again.  If you did not understand, Mr Bensch.  The CCO applies to every single charge so one had been left out, so just sign this extra order.  Thank you.  Is there any further required.

103MR WIEGL:  No, Your Honour.

104HIS HONOUR:  Ms O'Brien, thank you for your assistance, and Mr Wiegl and Mr Moore.  I will stand down.  Mr Bensch, you have to head downstairs and it will get sorted out downstairs sometime today.  We will move to the next case, the Commonwealth case, as soon as possible.  Thank you.

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