Director of Public Prosecutions v Jaworski

[2020] VCC 293

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-01351

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS JAWORSKI

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	13 March 2020
DATE OF SENTENCE:	19 March 2020
CASE MAY BE CITED AS:	DPP v Jaworski
MEDIUM NEUTRAL CITATION:	[2020] VCC 293

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecution
For the Accused	Mr R. De Kretser	Dribbin

HIS HONOUR:

1Nicholas Jaworski, some time ago when you worked in a gym you foolishly took to using steroids.  It seems you bought steroids using an encrypted communication app on your phone or computer.  Sometime in October 2018 you received a message on that app from a male you once worked with at the gym.

2The exchanges between the male and you can be summarised in the following way.  He offered you work which included taking delivery.  You were told that there would be payment of about $1500 for the first one.  You were told that the delivery would be picked up quickly from your address.

3The male asked you and you gave him your residential address where you lived with your father.  You asked what the worst that could happen would be making it clear in my mind that you were aware from the beginning that what was to be delivered was illegal.

4You were asked why the male could not use his own address.  The response was that the male said he had used his own address many times before and he could not keep doing it to the same place.  Again it makes it plain that the undertaking was illegal and likely organised in respect of early deliveries.

5There were other aspects of the conversation that makes it clear you were being asked to expand from being initially an address for one delivery to regular participation as someone who could make between $10,000 and $15,000 a month.

6Further, you were asked and showed some willingness to be a driver and to deliver things interstate.  On 16 October 2018 a large package addressed to you was intercepted at the Tullamarine Airport.  It was in fact two suitcases.  An examination of the suitcases revealed 2.9 kilograms of methylamphetamines concealed in the lining.

7The drug was at a very high level of purity being around 84 to 85 per cent.  On 22 October 2018 the police made a controlled delivery to your address.  It seems you were out and your father accepted the package and put the suitcases in your bedroom.

8The police later attended the house.  You made frank admissions when the police came to your house, acknowledging your stupidity to accept the offer of a relatively small amount of money when you knew it was likely drugs would be delivered.

9Police later interrogated your phone which revealed your naïve internet searches about topics such as the consequences of ordering drugs to your house, using your address for criminal activities, and if you ordered drugs online what were the chances of getting caught by Border Control.

10During the physical search by the police at your residence they also found vials of testosterone that you had for personal use.  You have pleaded guilty to a charge of attempting to traffic in a drug of dependence.  The timeframe or date was on the day of the delivery, 22 October 2018.

11The agreement between the prosecution and you was expressed in the prosecution opening as follows and I quote from paragraphs 18 to 21 which reads:

"It is agreed between the parties that the accused was aware that there was a real or significant chance that the parcel he agreed to receive on behalf of another person contained a drug of dependence.  The prosecution does not allege that the accused was involved in sourcing or importation of the drugs of dependence.  Rather the prosecution alleges the accused was involved in trafficking drugs on a common law basis.  The charge is put on the basis that the accused was attempting to participate in the progress of the methylamphetamines from source to consumer by forwarding it on to the third party contained within the text messages and in exchange he was to be compensated.  The accused accepts that the parcel he was to receive ultimately contained a large commercial quantity of methylamphetamine.  However, the prosecution does not allege that the accused knew the exact drug or quantity of the drug that he was to receive and did not make enquiries of this.  The prosecution does not allege that the accused has the requisite commercial or large commercial intent for the reasons articulated in the previous paragraphs'.

12What was revealed though in messages that you sent to the male was that you advised the male the package had been delivered and a photograph was sent to them.

13The maximum penalties for this crime of attempting to traffic in a drug of dependence of 15 years' imprisonment.  For possessing the testosterone in all the circumstances of it being for personal use the possession of that drug brings a maximum penalty of one year imprisonment.

14Ordinarily being involved in a crime where drugs were imported or the later possession of such a large amount of methylamphetamines would see a very long term of imprisonment imposed on the context of a maximum term of imprisonment being life imprisonment.  The seriousness of these circumstances cannot be overstated.

15However, as both parties contend this is an extraordinary example of the crime of attempting to traffic in methylamphetamines, so extraordinary that the prosecution conceded that a combined gaol term and a community corrections order was within the proper exercise of my sentencing discretion.

16Your counsel in a comprehensive plea submitted that on the basis of your limited and your particular role and your personal circumstances what should occur would be a community corrections order alone as the proper and just sentence.

17You were assessed and subject to some concerns about doing unpaid work and you were found to be suitable.  Your personal circumstances do reveal significant matters in mitigation.  I will summarise.

18You are a young man, 21 at the time and only 22 now.  You have no prior criminal history although unfortunately you were charged in recent times with minor drug matters.  You are contesting those charges so it plays no part in my consideration.

19Thus the principles relating to sentencing young offenders are set out in
R v Mills and R v Azzopardi are relevant.  I will not repeat each of those principles in full but I indicate I have applied them in appropriate measure in your case.

20It is to be noted that you are a young person, that is you are now 22 and you were 21, as I have stated, not as young as some who come before the courts to which those principles apply.  However, I consider that your relative youth and your immaturity, your naivety, means your capacity to think through the full consequences was not fully developed as it would be expected in a more worldly adult.

21Thus your moral culpability is to a degree lower.  Also I must and I have emphasised your rehabilitation giving it more weight than other sentencing purposes such as general deterrence and denunciation.  That said the seriousness of the offence is such that general deterrence is far from eliminated and general deterrence is usually a very weighty sentencing purpose in crimes of this kind.

22Your plea of guilty came when the prosecution case was clarified.  Importantly it has real utilitarian value.  It also evidences your remorse.  There is a considerable array of other material evidence in your genuine remorse.

23I have read carefully the letters from your parents.  They see your shame and they are sure you will in the future be law abiding as this conduct is completely out of character or out of the character of the person that they know and brought up.

24Up until the offending you had a good work history and a solid job at the time.  Unfortunately the publicity caused you to lose your job.  You have tried to get other work but again that has proved difficult given the notoriety of your offence.

25A matter of concern was that on Christmas Day 2019 you were shot in the leg.  You will not cooperate with the police about the circumstances.  The fact of the shooting and your silence are troubling.  Your counsel submitted that even on the paucity of information forthcoming from you about the circumstances it could be accepted that you would be at greater risk if imprisoned.

26On balance I am of the view that this shooting incident would make prison more frightening to you.  Beyond that the unresolved risk of infection, given that shotgun pellets remain in your knee, is a matter making imprisonment more onerous.

27While the State are obliged to care for you in custody you may well feel greater anxiety and physical difficulties if imprisoned.  You will need to be monitored carefully as to your physical problems.  Your doctor, a general practitioner, has set up a mental health plan and since the shooting your mental health has been fragile understandably.

28Your mental health was otherwise suffering as a consequence of another tragic event coincidentally also happening just after Christmas, this time on Boxing Day 2016.  Your sister and her partner were driving in a car that was hit by a truck.  Your sister suffered serious injuries and she is only slowly recovering.

29Your mother provides significant care for her.  Your mother's mental health of course is more fragile itself.  Tragically your brother-in-law died.  You were close to him.  You were devastated and remain affected.

30A court case involving the truck driver has only just resolved with high emotions involved for your family.  This is a sad set of circumstances and I take into account those circumstances as mitigatory or as lowering the severity of any penalty.  Your father's health is not robust.  He has had cardiac bypass surgery.

31You live with him and you look out for him.  You will be concerned as to his welfare in these troubling times, worrying about family weighs more heavily on those imprisoned and I have taken that into account and to a degree in more measure given the circumstances in which we all live.

32As I have said your counsel submitted a community corrections order alone could meet all the sentencing purposes.  The prosecution argued a combined sentence was within range.  The Court of Appeal in this State in the seminal case of R v Bolton & Ors made it clear that the new community corrections order regime changed the sentencing landscape.

33What is meant by that is that serious crimes that ordinarily attracted imprisonment could be appropriately sentenced by a community corrections order or a combined community corrections order with shorter terms of imprisonment.

34The benefit of such orders were to allow for punishment and targeted rehabilitation to occur simultaneously.  That said cases following Bolton make it clear that the new regime did not authorise such penalties if the gravity of the particular circumstances was so concerning and serious that only imprisonment would meet the sentencing purposes of denunciation and general deterrence.

35The balance in this matter is a fine one.  You were involved to a limited degree in a serious crime involving a large amount of a drug that causes very significant damage in our community.  However, in assessing the gravity of your offending I cannot forget how the case is put against you as someone who just naively offered your house as the delivery point.

36As the Court of Appeal has repeatedly said in drug offences that all involved at all levels, even at the lowest, must be used as vehicles of deterrence to others who may get involved in any way in the drug industry.  In this case the drugs were sourced and secured and sent in the post so it could be moved into the Australian community with all the damage that that brings.

37Thus the crime of having to provide a delivery address is serious.  The drugs had to be delivered somewhere.  It is part of the business model of this type of drug trafficking.  By providing your address your role was an important one though at the lowest level.

38Your rehabilitation at your age remains important.  In my mind that is satisfied by the imposition of an onerous community corrections order.  However, given the gravity and all the circumstances of this crime and you as the offender I am of the view that there must be some gaol time, albeit much, much less than would ordinarily be the case.

39I understand and always acknowledge that it is a grave step to send a young person to gaol for the first time, but in all the circumstances there is no other option.  For committing the crime of attempting to traffic in a drug of dependence you are sentenced to a term of imprisonment of six months.

40This will be combined with a community corrections order that will last for 30 months and will be a variety of conditions attached to that and they will be read out to you shortly.  For the possession of the testosterone in all the circumstances it seems to me that this as a crime can be dealt with by the imposition of a sentence of imprisonment of seven days to run concurrent with the sentence that was imposed on the earlier charge.

41You have been held in custody already for one day before getting bail.  This time in custody prior to this sentence being announced having been calculated or reckoned I will declare that it is part of the sentence I have just imposed.

42I will ensure that the declaration is entered into the records of the court so the prison authorities are left in no doubt you have done one day of the sentence I have just imposed.

43Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of three years and six months with a minimum term of two years and three months.

44The community corrections order that I impose as I said will go for 30 months.  Thus you'll be under the supervision of the authorities in total for three years.  You will have to do some unpaid work.  There has to be some punishment in my view.

45However, that is subject to the Office of Corrections receiving the appropriate authorities from your doctors.  If that is not forthcoming then the matters can be adjusted.  The unpaid work you must do is 100 hours.

46You must also undergo treatment and rehabilitation for an assessment for drug use.  You must undergo treatment and rehabilitation for your mental health and you must also be under the supervision of the Office of Corrections.  Are there any other matters that need to be dealt with before the order is produced?

47MR BROWN:  Some ancillary orders I think.

48HIS HONOUR:  There will be a disposal order in relation to the drugs of course.  There is a request for a forensic sample, Mr De Kretser?

49MR DE KRESTER:  It is a matter for Your Honour.

50HIS HONOUR:  Thank you.  In my view what is being asked here by an application of the Office of Public Prosecutions is that you provide a forensic sample, that is a scraping from your mouth such that your DNA can be extracted and placed on a database.

51The application having been made I intend to grant it.  The reasons for that is I am satisfied it is justified because of the seriousness of the circumstances and the granting of the order is in the public interest.

52I need to explain to you that at the time the authorities come to get the forensic sample should you not cooperate those police or prison authorities may use reasonable force to enable the forensic procedure to be conducted.

53It is a simple swab from your mouth.  The way through it is just to cooperate.  I make an order to dispose or forfeit the items set out in a schedule which is an Apple iPod and an Apple phone that were used in the process of this crime.

54I also make an order relating the disposal of items set out in a schedule which are the drugs and the packages they came in.

55MR DE KRETSER:  Sorry, Your Honour, the only other thing is just a custody management issue in relation to his knee.

56HIS HONOUR:  If you have got copies of his medical material including that then he can take it providing prison authorities here see it.

57MR DE KRETSER:  Thank you, Your Honour.

58HIS HONOUR: I say it many, many times. I make orders and I cannot order them to do anything. They are under obligations under the Corrections Act and under the generalised duty of care that the State has for prisoners to assess him and treat him.

59MR DE KRETSER:  I will give him back that document when I go and see him shortly, thank you, Your Honour.

60HIS HONOUR:  Yes.  We have got a range of things that you have got here if you need them.  I would be careful with documents in the prison that outline the circumstances of this man's injury.  If I had any role in it - it is a matter for you - I would provide them with a document that he has got a bad knee and he needs treatment.

61MR DE KRETSER:  Which I will link this document.

62HIS HONOUR:  We will leave it at that.

63MR DE KRETSER:  Thank you, Your Honour.

64HIS HONOUR:  Mrs Jaworski, I am not going to tell you off or anything but if we just have - that is something to talk to your son and your lawyer and those that were involved.  Everyone is under enough stress at the moment, you mostly, but if we can just have a bit of dignity about it, we will sign this order and things will be done.

65These are not easy times for anyone.  Mr Jaworski, the corrections order here that I have got starts when you are released.  It goes for 30 months.  The conditions that apply to everyone I am going to get through.  Many of them are about cooperation so you must once you are released comply with obligations and requirements under the Sentencing Regulations that will be explained to you by the Office of Corrections about identification of photographs and the like.

66You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre.  It is up there in Little Mallop Street in the State Government Office, within two clear working days of the order starting.

67You must let the Community Corrections Officer know within two clear working days of your change of address or job.  You must not leave Victoria without getting permission to do so and you must obey all lawful instructions.

68In your case there are other conditions but before I move to that the most important in my view condition that you have to understand is you must not commit another offence for which you can be imprisoned during the time this order is in force and it is a long one.

69If you do you will come back before me and you do not probably sense it in any way, shape or form, but the mercy shown in this case will not be repeated.  The conditions that apply to you in this corrections order are you have to do 100 hours of unpaid community work over the 30 months.

70You must undergo assessment and treatment for drug abuse and dependency and you must undergo mental health assessments and treatment as directed by the regional manager and you must be under supervision of the corrections officer for 30 months.  Mr De Kretser, can you get that signed?

71MR DE KRETSER:  Yes, Your Honour.

72HIS HONOUR:  Thank you.  Mr De Kretser will come down and see you and deal with your - help your family as to when they can get in contact with you and so on and so forth.  The circumstances that we have in court are such that you have to go with the prison officers now.  Thank you.

73That is my point I have just been trying to make.  We just are not set up to be able to set up connection between you and your family.  Thank you for your assistance in this matter, Mr De Kretser, I will stand down.

74MR DE KRETSER:  Thank you, Your Honour.

‑ ‑ ‑