Director of Public Prosecutions v Evers

[2017] VCC 1226

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 16-02113

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER EVERS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:	28 August 2017
DATE OF SENTENCE:	28 August 2017
CASE MAY BE CITED AS:	DPP v Evers
MEDIUM NEUTRAL CITATION:	[2017] VCC 1226

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch
For the Accused	Ms D. Dempsey

HER HONOUR: 

1Tyler James Evers, you have pleaded guilty before me to one charge of importing a border-controlled drug, contrary to s.307.3(1) of the Commonwealth Criminal Code and three charges of importing a marketable quantity of a border-controlled drug contrary to s.307.2(1) of the Commonwealth Criminal Code.  The facts underlying are as follows:

2Essentially, this offending involves four occasions on which you have sought to import drugs from overseas, namely the Netherlands and in one case Germany.  The first importation, always importations being by mail, occurred when a package directed to you at your parent's home in Terang was intercepted by Border Force officers who found a package containing one gram of white paste which a presumptive test revealed to be amphetamine.  That offending underlies Charge 1 on the indictment.

3On 5 June 2016, a second consignment addressed to your parent's home from the Netherlands contained 104 MDMA tablets which was examined and found to contain 7.4 grams of pure ecstasy which underlies Charge 2 on the indictment.

4A second package containing ecstasy, this time 50 MDMA tablets, was intercepted by Border Force officers on 1 August 2013; again, this was a package which had been sent from the Netherlands.  Those tablets contained 4.9 grams of pure MDMA.  That offending underlies Charge 3.

5Charge 4 relates to the final importation by you when on 2 August 2016, Border Force officers examined a third consignment to you at 96 Grey Street, Terang, from Germany being a package containing 200 MDMA tablets which forensic examination determined contained 24.2 grams of pure MDMA.

6The marketable quantity of MDMA is 0.5 grams and that quantity stretches up to 500 grams at which stage the quantity is then termed a commercial quantity.  You imported a total of 36.5 grams of MDMA which was 73 times greater than the marketable threshold and 7.3 per cent of the commercial threshold. 

7Police executed a search warrant at your mother's home on 6 September 2016 and she directed them to your home at 18 Strong Street, Terang.  You were arrested and at the address made admissions to importing pills.  You conducted a very co-operative record of interview with police, admitting to all the importations, describing using a Tor browser to access the dark web to purchase drugs.

8You told police very honestly that you had imported drugs with the intention of selling them and for your personal use.  You said you had seen how cheap the drugs you imported were, you became tempted, started buying them and used your real address in order to deter suspicion from the local postie who would have known there was a false name attached to that address. 

9Your motivation was "I like drugs and I was desperate for money".  You also said you needed money to pay for your medication.  You entered a plea of guilty at the earliest stage and the matter proceeded by way of hand-up brief.

10You are now 22 years old and this offending occurred when you both 20 and 21.  You are one of three children born to your parents who separated when you were three.  There was a period of non-contact with your father but that picked up again when you were about 15 or 16.  Your mother re-partnered when you were five and you reported a good relationship with your step-father. 
You now live with your grandparents in Terang.

11You completed Year 12 at Mercy Regional College in Camperdown and began studying an Arts/Commerce degree at Deakin University in Geelong.  However, you dropped out during your second year - tragically, it would seem, because around that time the effects of a cannabis habit which began when you were 18, as well as use of ecstasy and then unfortunately ice, at university resulted in a psychotic breakdown and a suicide attempt by you.

12You then had to drop out of university and return home.  You were, your counsel Ms Dempsey told me, referred to the Area Mental Health Service following your release from a psych hospital but dropped out of that service, concerns being so high that there was a welfare check by police at your home, at which time you were, in fact offending.

13After returning home to live with your mother, unfortunately you continued to use ecstasy and it appears that alcohol has become a problem for you. 
You began drinking socially at age 16 but by age 18 were drinking habitually and that drinking, unsurprisingly, escalated when you were at university and you were drinking on a daily basis.

14Also, unsurprisingly, since this arrest matters have improved in terms of you attending to the psychiatric difficulties that have attended you since your breakdown as a result of your drug use.  You are properly overseen via a psychologist at your Area Mental Health Service whom you see fortnightly and your case is overseen by a psychiatrist.  You are currently on the medication Olanzapine which is a serious medication response to a psychiatric condition, it being, apart from anything else, an anti-psychotic drug. 

15Unfortunately, at the on-set of the psychiatric illness you have suffered auditory hallucinations.  You appear to have ceased drug use but the auditory hallucinations have persisted, it would appear, on an almost daily basis and it was the view of a psychologist, Alan Jager, whose report dated 13 June 2017 was tendered on the plea, that the fact that you are continuing to suffer from auditory hallucinations means that you can now be diagnosed as suffering from paranoid schizophrenia and that this illness is likely to persist for some time.

16I also received reports from WRAD - an alcohol and drug outreach service, (that is the Western Region Alcohol and Drug Centre).  I received reports from a clinician there, Kay-Leigh Walmsley-Sims, who has confirmed that as at 25 May 2017 you were continuing to attend regularly at their service.  I am also informed that you have twice attended at Narcotics Anonymous and I commented during the plea that this was an extremely appropriate organisation for you to attend upon given the wrap-around service, essentially, that it can offer you on a 24/7 basis. 

17I also received references from family and friends indicating that you have a good structure of support from those close to you in your life.  You have not offended previously nor have you offended since.  It is your desire to return to university; at present, you are working on a part-time basis a fish and chip shop and simply attending, as you must, to managing your psychiatric illness. 

18I note that you have frankly stated that alcohol continues to remain a problem for you.  You continue to drink on a daily basis and this is clearly a situation that you are going to have to get on top of before you can get on with the next stage of your life.  There is no reason, indeed, why you cannot but it is never an easy road to hoe when you are managing a mental illness.

19The prosecution has not disagreed with the proposition that I deal with you by way of the imposition of a term of imprisonment from which, however, you will be released upon you entering into a recognisance to be of good behaviour.  I have explained to you that that means that you promise to the court that you will be of good behaviour, in particular for the period for time nominated as attaching to the order. 

20If you do offend within that period of time, you will breach that order and be brought back before me.  I will have a copy of these sentencing remarks, I will be aware of the opportunity that has been given to you and I will have the power to resentence you on these matters and that would well likely include a serious look at a gaol sentence for you which would be a great shame in the circumstances.

21Had you not had the psychotic breakdown that you had had, I am confident that you are a young person who would not have ended up before the courts and had a bright future.  It is going to take a while, undoubtedly, for you to get back on track again but I as have already stated, I am confident that that will occur given your own very good antecedents and the family support that you enjoyed. 

22In sentencing you, I take into account your plea.  I accept that you are remorseful for your offending as indicated both by the early plea of guilty and the extremely co-operative record of interview you conducted with police.  I take into account that you have no prior or subsequent criminal convictions, that you have good family support, and that to some extent your psychiatric illness contributed to your offending.

23It is clear from Dr Jager's report that your decision making processes were much less than a hundred per cent if I can put it that way, that it was foolish and disorganised thinking to which I am satisfied to which your psychiatric illness had some contribution. 

24In addition, I am satisfied that given your age and given your psychiatric illness, service of a term of imprisonment would be far more difficult for you than for an ordinary prisoner.  You are still a young offender, according the legislation. 
So rehabilitation remains a significant factor to be taken into account by any sentencing court.  It is particularly important to this court that you have taken the rehabilitative steps that you have and that that continue.

25The fact that you are being released on what, in laypeople's term, may be regarded or called as a suspended sentence is not necessarily simply a sign of this court going easy on you because of your age and your psychiatric illness.  This is not a matter of you walking free from the court.  You walk from this court with a heavy burden hanging over you; that is the knowledge that for the next two years, because that is the period of time I am going to attach to the recognisance to be of good behaviour, you are on a knife's edge.

26If you offend, you will be back in front of me.  This is serious offending and you can confidently expect a gaol sentence.  All right?  So it is very much in your interests, both personally and insofar as a term of imprisonment is concerned, for you to keep doing what you are doing.  All right?  Thank you, can you stand up please?

27I note that the maximum penalty for Charge 1 on the indictment is ten years' imprisonment and the maximum penalty of the offences contained in Charges 2, 3 and 4 is 25 years' imprisonment.  You can see from the maximum, particularly in Charges 2, 3 and 4 that importation of drugs is considered a very serious charge; 25 years' imprisonment is pretty much at the top range of maximum sentence available under the Crimes Act, both Commonwealth and State.  So you can see that this is a very special circumstance in terms of you not being imprisoned today and how serious the consequences will be for you if you do not take advantage of this one-off opportunity Mr Evers. 

28I sentence you as follows.

29On Charge 1, you are sentenced to six months' imprisonment.

30On Charges 2 and 3, you are sentenced to 12 months' imprisonment.

31And on Charge 4, you are sentenced to eight months' imprisonment.  I order that three months of the sentences imposed on Charges 2 and 3 be served cumulatively to the sentence imposed on Charge 4, giving a total effective sentence of two years.

32That sentence is to begin today, 28 August 2017.  You are to be released pursuant to a recognisance to be of good behaviour for a period of two years which recognisance will begin today.  We will prepare the papers for you to sign, thank you.  Is there anything else to attend to?  Do I need to do a s.6AAA? 
No, I beg your pardon?

33Pursuant to s.6AAA, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two and half years and order you serve a minimum term of 15 months.  All right, have a seat.  Thank you very much.  Now it is the Commonwealth fill it in?

34MR CROUCH:  Yes, Your Honour, I have got it here.  I will just fill in the form.

35HER HONOUR:  Thank you very much.  He is to be of his own recognisance.

36MR CROUCH:  So it is a two year sentence to be of good behaviour for two years.

37HER HONOUR:  Yes, that is right.  A two year sentence and then a recognisance for two years.  Did you get the individual sentencing?

38There is to be a thousand dollar recognisance which you only pay if you breach the order.  All right, so that is another little spur to not re-offending, all right?  Because I do not want to you to get - I am sure your family would be incredibly impressed if you went scraping around say I have breached the order and I am not just going to gaol but you are going to give me a thousand dollars. 

39So you would be as popular as the plague, I would imagine.  All right, yes, that is fine.  Fine.  All right, we will get you to sign that, thank you sir.

40MS DEMPSEY:  If I could accompany your ‑ ‑ ‑

41HER HONOUR:  Yes, of course.  Is the informant sitting here, is that right sir?  Am I right about the ecstasy everywhere.

42VOICE (from the body of the court):  Yes you are, Your Honour.

43HER HONOUR:  Yes, no one gets it, do they?

44VOICE (from the body of the court):  No.

45HER HONOUR:  It is just everywhere and kids like him everywhere. 

46VOICE (from the body of the court):  Yes, just in ‑ ‑ ‑

47HER HONOUR:  They do not even think about it.  It is just "Everyone uses it, I might as well make some money out of it".

48VOICE (from the body of the court):  Yes, it's good that we got him now, Your Honour.

49HER HONOUR:  Pardon?

50VOICE (from the body of the court):  It was good that we got him.

51HER HONOUR:  Now?

52VOICE (from the body of the court):  Now.

53HER HONOUR:  Absolutely.  No, entirely agree.  Imagine if he'd got through.  "Yeah, I'm really big.  I'm going to get 4000 tabs".  Yes, and then no choice, you would be in.  All right?  So you almost owe the police a favour and, really, you had the good sense to admit it.  Not that I think it was going to be very easy for you not to but you know, caught you in an early.  We are just going to make a copy.  All right, counsel are excused from the Bar table. 

54HER HONOUR:  Thank you.  Thank you for your assistance sir and thank you to the informant.  Thank you very much.  You can come out of the dock sir.  And you can take your boy home.  Good luck to him.

55VOICE (from the body of the court):  Thank you, Your Honour.

56HER HONOUR:  That is a pleasure.

57MS DEMPSEY:  If I could be excused from the Bar, just to ‑ ‑ ‑

58HER HONOUR:  Thank you.  It is going to take you a while to live this one down, Mr Evers?

59OFFENDER:  Thank you.

60HER HONOUR:  Yes, thank you.

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