Director of Public Prosecutions v Mathuran
[2020] VCC 1121
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-02244
| THE QUEEN |
| v |
| ARAVINDA MATHURAN |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2020 | |
DATE OF SENTENCE: | 28 July 2020 | |
CASE MAY BE CITED AS: | DPP v Mathuran | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1121 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – plea of guilty - trafficking a drug of dependence – import a marketable quantity of a border-controlled drug – possess a drug of dependence – deal with property suspected of being proceeds of crime – state and commonwealth offences -
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Holmes | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde-Wilson Lawyers |
HIS HONOUR:
1 Aravinda Mathuran, you have pleaded guilty to one charge of traffic a drug of dependence, one charge of import a marketable quantity of a border-controlled drug, and one charge of possess a drug of dependence.
2 The maximum penalty for trafficking a drug of dependence is 15 years imprisonment. The maximum penalty for importing a marketable quantity of a border-controlled drug is 25 years imprisonment and/or a fine of 5000 penalty units. The maximum penalty for possessing a drug of dependence is five years imprisonment and/or a fine of 400 penalty units.
3 You have also pleaded guilty to a relevant uplifted summary charge of dealing with property suspected of being the proceeds of crime, which carries a maximum penalty of two years imprisonment.
Circumstances of Offending
4 The circumstances of your offending was outlined in the Amended Summary of Crown Opening for Plea dated 3 June 2020. This Crown Opening in addition to Annexure A to the opening, and the Prosecution chronology, together became Exhibit A on your plea and forms part of these reasons.
5 Between 27 September 2018 and 10 February 2019, a total of 15 parcels addressed to Stefan PERERA, originating from overseas were intercepted upon arrival to Australia (Charge 2 – import a marketable quantity of a border-controlled drug). Each parcel contained either 3,4-Methylenedioxymethamphetamine (‘MDMA’), ketamine or cocaine. Particulars of each parcel were contained in Annexure A to the Crown Opening which is part of Exhibit A. I do not intend to reproduce the detail of each parcel in full.
6 Investigators identified that Stefan PERERA was an alias used by you and on 8 February 2019, police executed search warrants at your home and located a number of drugs of dependence (Charge 3 – possess a drug of dependence). Your mobile phones contained evidence that you had been trafficking drugs of dependence (Charge 1 – traffic a drug of dependence).
7 You were interviewed by investigators at your home and gave a no-comment interview. You were arrested and transported to Box Hill Police Station where you were charged.
8
Two mobile phones were examined by investigators. Both phones showed evidence that you had been trafficking in MDMA, cocaine, and Lysergic Acid Diethylamide (‘LSD’) since
18 January 2018.
9
In the notes section of the phone investigators identified a note dated
18 January 2018 reading ‘Luca 3.5g (0.5 in one bag) and 4 caps $710’ and a note dated 30 January 2018 keeping track of money given by and to you from other parties, including a reference to ‘$300 for coke’.
10 An album of photos named ‘Biz’ dated between 11 April 2018 and 3 January 2019 was located on both your phones. The album contained photographs of drugs in bags, screenshots of messages from customers, and testing results. The messages were sent to you as ‘drkemist’. The messages included:
· ‘grea coke by the way’ and ‘1 cap and a 50 bag of k sir’
· ‘premium coke my brother, my mate from Perth says it’s the best he’s ever had. Taking the md tomorrow for a comedy show’
· ‘What r these tabs called’ ‘that shit was magical’ and ‘a proper full blow psychedelic visuals for most of that time’
· ‘Trip report big fellah, me and the crew all took a full tab and had an absolute blast! Very clean, mad visuals, all in all about a 12 hour trip give or take. Woke up feeling fresh with a nice after glow. Will certainly be back for more!’
11 You did not provide an explanation for the presence of $2335 cash found in your home. (Summary Charge – deal with property suspected of being proceeds of crime).
Forensic Examination
12 Each of the overseas parcels seized by Australian Border Force were sent to Victoria Police Forensic Services Centre for forensic testing. The parcels were found to contain quantities of MDMA, cocaine and ketamine as set out in Annexure A to the Crown Opening. The purities ranged between 24 and 96 per cent. In total, there were:
· Between 451 and 530 grams of pure MDMA;
· Between 6 and 7 grams of pure ketamine; and
· Between 4.7 and 6.3 grams of pure cocaine.
13 The quantity of imported MDMA borders the commercial quantity threshold. In fact, you imported approximately 902 times the marketable quantity. The estimate provided by the Prosecution with respect to the street value of the MDMA in Charge 2 would amount to $40,267 if sold in 28g lots.
14 The substances found at your residence included clear capsules, powders, green vegetable matter and paper tabs. The substances were sent to Victorian Police Forensic Services Centre for forensic testing. The purity levels of the substances located at your premises ranged between 19 and 95 per cent. In total, there were:
· 17.7 grams of pure cocaine;
· 22.8 grams of pure MDMA;
· 5.5 grams of pure ketamine;
· 952 milligrams of LSD in combination with another substance; and
· 29.6 grams of cannabis.
15 One of your phones contained a note outlining the overseas orders made by you. The note details the quantity and type of drug ordered, the date of the order, and which address the parcel is going to.
16
You were arrested on 8 February 2019. You were remanded until
18 February 2019, where you were granted bail. On 12 June 2020 you presented yourself to the County Court for your bail to be revoked and you have been in custody since that date. You have spent 57 days in custody excluding today.
Personal Circumstances
17 Your personal circumstances were outlined in your Counsel’s Submissions on Plea dated 3 June 2020 with attached procedural chronology. This was Exhibit 1 on your plea and forms part of these reasons.
18
You were assessed by Patrick Newton, Clinical and Forensic Psychologist, on 5 May 2020. Mr Newton’s report dated 25 May 2020 was tendered as
Exhibit 3 which also forms part of these reasons.
19 You were born in Australia on 20 April 1990. You were between 27 and 28 years of age at the time of the offending and are now 30 years of age.
20 Your parents are now retired. Your father was a tram driver and your mother an auditor for the Australian Tax Office. You have two younger brothers. I note your father, mother and brother were present in court to support you at your plea hearing, clearly deeply concerned for you and your welfare and, of course, your future.
21 You attended Clayton Primary School and completed Year 12 at Mount Waverley Secondary College.
22 You obtained a traineeship as an insurance broker for Masters Builders Insurance working part time while completing TAFE studies. In 2015 you moved to work in the company's Sydney office.
23 You have also worked as an actor featuring in commercials for Carlton Draft, BUPA, CBUS, Sportsbet and minor roles in television shows including Wentworth, The Wrong Girl, and Neighbours amongst others.
24 Whilst on bail for this offending you recommenced part time work as an Uber driver. That work ceased as a result of restrictions due to COVID-19.
25 In August 2017 you relocated briefly to the United Kingdom with your then girlfriend. In May 2018 that relationship ended and you returned to Melbourne. It was during the course of that relationship that your drug use escalated and became daily use. You told Mr Newton this relationship was dominated by your mutual drug use and immersion in the ‘party lifestyle’.
26 In 2018 you commenced a new relationship with a woman who was not a drug user. Your drug use decreased markedly whilst in this relationship however the relationship ended and your drug use escalated after the breakdown of the relationship.
27 You told Mr Newton that you began smoking cannabis at 15 years of age. You stated that the cannabis quelled your anxiety and helped you to relax. From the age of 20 you began to use MDMA and various other stimulants, primarily cocaine.
28 You stated that MDMA made it easier for you to interact with others and cocaine boosted your self-confidence and made you feel a sense of alertness. You said initially your drug use was sporadic but with time it steadily increased and by age 24 you were engaged in heavy drug use several times each week.
29 You reported to Mr Newton that from 2018 you have used benzodiazepines, Valium and then ‘graduated’ to Xanax as a means of reducing agitation caused by your abuse of stimulants.
30
Mr Newton’s found you have a substance-use disorder of moderate to severe intensity with regard to illicit stimulants, benzodiazepines and cannabis.
Mr Newton stated that you had clearly been addicted to cannabis, illicit stimulants (primarily cocaine) and benzodiazepines (primarily alprazolam).
Mr Newton found that you suffer a clear physical dependence on these substances, and you have also suffered a plethora of negative impacts across educational, occupational, interpersonal, psychological and emotional areas of functioning.
31 Mr Newton found your mental status to be essentially normal. While you reported some anxiety, Mr Newton found there is no indication of clinically significant anxiety related symptoms. Therefore, Mr Newton found you would not meet the criteria for any mood disorder, anxiety-related disorder or adjustment disorder and there is no indication in Mr Newton’s opinion that you were suffering such a disorder at the time of the offending.
32
Your first period of remand for this offending between 8 February 2019 and
18 February 2019 was your first time in detox, abstaining from drug use and your period on bail is the first time you have engaged in active treatment. A condition of your bail was to engage in treatment with Lamberti & Associates.
33
Mr Newton opined that notwithstanding your participation in treatment with
Ms Brown your insight into your drug problem remains relatively superficial.
34 Mr Newton is concerned your understanding of relapse-prevention has significant gaps and that your understanding of the steps necessary to sustain long term abstinence are not well developed. You experienced a relapse in January 2020. Mr Newton noted that relapses are commonplace in the recovery from long term drug addiction and when managed effectively they provide an opportunity for you to improve your relapse-prevention skills by better targeting treatment to your needs.
35 Mr Newton stated it was not clear that you are yet to complete this process and as a result the effects of your relapse continue to pose a challenge to your progress towards recovery.
36 Mr Newton stated it is too early to specify your substance-use disorder is in any form of remission. Further structured treatment is required and in a community context you should be closely supervised and have clear contingencies in place for any non-compliance on your part.
37 Mr Newton opined that your most pressing need is to comprehensively and permanently break the cycle of addiction which has both underpinned your offending and caused other issues in your life more broadly.
38 At the initial plea hearing leave was granted for a report from Ms Brown from Lamberti & Associates to be provided including reports as to clear urine screening to be provided for the following plea hearing and this was done.
39 I have received, as I indicated on the last occasion, the report of Ms Brown dated 13 July 2020 and I accept the contents within that report. In particular, Ms Brown summarises that you have been more than successful in your recovery, ticking off the list recovery requirements contained in a recovery plan agreed upon from the outset of treatment. She said you appear to be a man who has battled with drug addiction since commencement of cannabis use at age 15. You no longer crave drugs and have adequate skills to manage your emotional world which was once ruled by your consumption of illicit substances.
40 You are remorseful and somewhat grateful for legal intervention and you were fully aware you had a problem with illicit substances and could not stop using drugs of your own accord. Ms Brown referred to the assessment of Dr Jonathan Upfal in relation to symptoms of Attention-Deficit Disorder (‘ADD’) which I will come to in a moment. In conclusion Ms Brown writes:
'It is my belief that Mr Mathuran has made the most of his time on bail working as an Uber driver, acting as an extra in an up and coming TV program… He has made a valiant effort and benefitted from pushing through the struggles to sustain a drug free status. He has been a pleasure to work with. I make myself available to work with him at any time upon his release from custody.'
41 And Ms Brown of course opines in relation to the January relapse putting that into context. Her opinion and recommendations are supported by the volume of urine screening material I was provided with and I accept the matters opined to by Ms Brown.
42
Your counsel also tendered a letter dated 3 September 2019 from Dr Jonathan Upfal of Albert Park Medical Centre which became Exhibit 4 on your plea.
Dr Upfal found you meet the criteria for an Attention-Deficit Hyperactivity Disorder (‘ADHD’) diagnosis and referred you to a psychiatrist for deeper evaluation and treatment. The assessment with a psychiatrist has not occurred to date. Dr Upfal also found you had below normal levels of tissue active thyroid hormone which likely contributed to your fatigue, sensitivity to cold and other symptoms all of which may induce the abuse of stimulants to counteract the lack of energy you feel. Dr Upfal commenced you on a supplement of thyroid hormone.
Good Character
43 I received a number of references from your long-term friends which were tendered as a bundle and became Exhibit 2 on your plea. I have read each reference and have taken them into account. They speak of you as a kind, considerate and hardworking individual and a loving family man. They also note your focus on self-improvement since you were charged with this offending and have observed your remorse and the steps you have taken to address your offending including drug counselling and asking close family and friends to support you in overcoming challenges.
44 You have no prior convictions and no other matters pending or outstanding.
45 I accept you are otherwise of good character and take this into consideration in mitigation of your sentence.
Plea of Guilty and Delay
46 You were charged on 8 February 2019 and bailed on 18 February 2019. The drug analysis was served on you on 3 September 2019 and the matter was listed for Drug Court on 12 September 2019. On 16 September 2019 the charges were uplifted to the committal stream and the Commonwealth Director of Public Prosecutions (‘CDPP’) took over prosecution of the matter.
47 At the first committal mention on 22 September 2019 the CDPP were confirming discussions had with the prosecutor in the summary stream. You pleaded guilty at a further committal mention on 11 November 2019. I accept that you had always intended on pleading guilty but a delay in analysis prevented matters progressing and you have had this matter hanging over your head for that period of delay. It is not an insignificant period.
48 I accept and take into account your plea of guilty at the earliest opportunity and that your plea has utilitarian value, as well as being reflective of your remorse. I consider the period of delay and the effects of delay to be significant.
49 You have demonstrated substantial rehabilitation during the period particularly in relation to illicit substance abuse. You have had the matter hanging over your head and the certainty of gaol hanging over your head for a lengthy period of time. You are no doubt older and wiser than when you committed these offences and you face the court during a pandemic more of which I will say in a moment.
Remorse
50 Your friends in the references tendered to the court have noted that you have expressed remorse for your offending. Mr Newton in his report stated that you expressed a degree of remorse for your actions. You told Mr Newton ‘selling drugs was an easy way to make money, and it was a way to feed my addiction. I had ways to sell easy and everything just got too comfortable.’ You also stated ‘I have a big feeling of guilt as I never wanted to cause any harm/trouble to anyone’.
COVID-19 Pandemic
51 Aside from ten days on remand in February 2019, this is your first time in custody. I have taken that matter into account, as I have the extraordinary circumstances being experienced in our community at present due to the COVID-19 pandemic.
52 Whilst there is no evidence of an outbreak in any prison at present, and I do not assume that there inevitably will be a serious outbreak, I accept that conditions in custody at present are considerably more onerous than previous, if for no other reason than due to the ceasing of visits. There is also limited courses and rehabilitation programs available and recreation is also necessarily limited. It is expected that that situation will continue for some indeterminate time.
53 I accept also that the general anxiety in the community of an untethered outbreak is understandably harder to bear if it is experienced by a prisoner in a regulated and managed environment such as a prison, where one has restricted control over who one is exposed to and how. I also accept that the level of concern you have and anxiety for others, your parents, for example, during this time is more difficult to bear whilst incarcerated.
54 In particular, the utilitarian value of your plea comes into sharper focus now that we are in the midst of the COVID-19 pandemic. You have indicated your plea and maintained it in the midst of these difficult times.
55 I must of course impose a sentence that is of a severity appropriate in all of the circumstances.
I must have regard to the matters set out in s 16A(2) Crimes Act 1914 (Cth) (Charge 2) which includes a non-exhaustive list of considerations and commences with the nature and circumstances of the offence.
56 I have noted the weight of the MDMA in particular in relation to Charge 2 and its proximity to the commercial weight. I made particular reference to it being 900 times the marketable quantity. That is a significant matter. Ihave also had regard to the what is stated as the value, and the street value of the substances. In my view ,that matter also affects my assessment of the nature and the circumstances of your offence.
57 I have been referred to and follow the statement in the case of Matthews to which I was referred, that is Matthews v R [2014] VSCA in relation to:
'If there be a perception among some that the online trading in drugs or their purchase or sale by post is somehow less serious than more traditional forms of dealing, those perceptions needs to be dispelled by sentences which adequately reflect the need for general deterrence.'
58 I accept and follow that statement and have applied it in my assessment of the nature and circumstances of the offence.
59 The postal method does say something about you as an offender, in my view. It is relevant to my assessment of your drift into serious criminality and your prospects of rehabilitation.
60 In my assessment you have been a person of otherwise good character who has descended into 'a party lifestyle', to adopt the term you used in discussion with Mr Newton, a party lifestyle that embraced drug use and supply of drugs that are often misnamed 'party drugs'. Over time your drift into serious criminality has occurred to due to the availability of means of importing which eased the manner in which someone of your background and predisposition can engage with organised crime.
61 The weight, as I have said, is of great significance in the sentencing disposition. Value also has a role to play. I was referred by your counsel to a case from this jurisdiction which of course is not referred to me for any point of principle but essentially to assist, and also on the question of comity, I suppose.
62 That case was the case of Vince a sentence by Her Honour Judge Cohen [2019] VCC 1808. I refer to it now to illustrate the point in relation to quantity and value, as your counsel did.
63 That was a case involving two charges of importation, both in a marketable quantity, one in relation to MDMA and one in relation to amphetamine, seven consignments of amphetamine, 165 grams of pure amphetamine and a further two consignments of MDMA amounting to 158 grams of MDMA.
64 Overall amounting to a quantity that was a substantial partof a commercial quantity. The value of the drugs in that particular case, and I am referring to paragraph [61] of the judgment, were said to range from $177,000 to about $307,000, the reference being the street prices.
65 Now, these things are never absolutes or dealt with in certainties and it may be that street prices vary somewhat from street value in 28 gram lots. But the point to be made is that weight is not the end of the matter when one is assessing the significance of the quantity.
66 I found it of some significance that you did not receive any of the packages. The delay or the periods between the arrival and ordering of each of the packages and the low quantities in most of them, it varies, and there is two in particular that are of high quantity but for the most part relatively low quantities.
67 Those two matters, the delays and the ordering, together with the quantities are suggestive of some type of scheme either perhaps to limit exposure or avoid detection. There must have been some rhyme or reason to it why you continued notwithstanding you did not receive packages.
68
Notwithstanding that view I am inclined to accept on balance that to a substantial degree you persisted with further importations once you concluded prior packages had failed for some reason. I am not saying this explains the
15 occasions in full, merely that I accept the notion advanced by your counsel to some degree and that it is relevant to my overall assessment of the nature and circumstances of the offence.
69 Referring to the other s16A(2) factors, there is something to be said in your favour in respect of several of them and I have touched on them already.
70 If a person has pleaded guilty to the charge of course I have referred to the deterrent effect upon you and the deterrent effect upon others. Charge 2 in particular, there is a significant general deterrence requirement. The requirement for general deterrence being reflected in the sentence exceeds whatever specific deterrence I consider to be appropriate. I consider that largely for a person of your background to be first time experience of custody of some length, specific deterrence is not a major consideration. General deterrence of course is. The need for adequate punishment, character antecedent, age, means and physical and mental condition and prospects of rehabilitation I have all taken into account. In particular, I regard your prospects of rehabilitation as very good.
71 I have also had to have regard to other cases, other cases are often relied upon in these courts to provide some sort of understanding of the range. In particular, in Commonwealth cases comity is an important principle that I have regard to - a level of consistency across the State jurisdictions insofar as Commonwealth matters are concerned. As I have indicated, I have referred to Matthews v R. Also Buttigieg [2020] SASCA 38. Also Hibgame v R [2014] VSCA 26. And Bertolini v R [2019] WASCA 149.
72 At the conclusion of the first hearing of the plea, I had you assessed for suitability of a Community Correction Order (‘CCO’) on the State charges. In the interim, the case of Atanackovic [2015] VSCA 136 was brought to my attention.
73 You were assessed as suitable for a CCO and you were willing to engage with a CCO, and I have taken that assessment generally into account – but the implications of Atanackovic, and more pointedly, my consideration of the matters relevant to sentence, have resulted in me dismissing the option of a CCO being imposed in this case sometime in the future or being imposed today, to be undertaken some time in the future, I should say.
74 My remarks focussed largely on Charge 2 which, it is common ground, is the most serious offence. The State offences are nonetheless of a level of seriousness, notwithstanding my broad acceptance of the Defence’s propositions that they are at the lower level. The State offence of trafficking, Charge 1, has several concerning aspects. Charge 3, the possession, the quantities involved are not what I would describe as very low.
75 I have considered that given the limitations imposed due to the combination of State and Federal sentences that a sentence of imprisonment is appropriate on Charges 1 and 3. As I have said, on Charge 2, general deterrence is a matter which I have given some prominence to.
Sentence
76 On Charge 1, traffic a drug of dependence, you are sentenced to nine months imprisonment.
77 On Charge 2, importing a marketable quantity of a border-controlled drug you are sentenced to three years imprisonment commencing on 28 September 2020. I fix a period of 15 months after which you are to be released on recognisance to be of good behaviour. The recognisance to be in the sum of $1500 to last for the duration of the sentence.
78 On Charge 3, possess a drug of dependence you are sentenced to 6 months imprisonment.
79 On the uplifted summary charge of dealing with property suspected to be the proceeds of crime you are sentenced to one month imprisonment.
80 Pursuant to s.18 of the Sentencing Act 1991 (Vic), I declare that you have served 57 days of pre-sentence detention excluding today and I direct that this be administratively deducted from the sentence that I have imposed today.
81 The effect of the sentence I have imposed is intended to be that effectively three months of the State sentence is cumulative, with the Commonwealth sentence starting three months from today. 15 months into that Commonwealth sentence you will be released on recognisance which would mean a period of 18 months from today less of course the PSD of 57 days.
82 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to a total effective sentence of four years and six months imprisonment with a non-parole period of two years and nine months.
83 I make the disposal order that is sought in relation to the drugs and the forfeiture order in relation to the 12 items listed in the schedule which includes the cash, mobile phones, computers, the Medicare card and drivers licence in the name of Stefan PERERA.
84 I also make the section 464ZF(2) order sought. Mr Mathuran, that means you are to undergo a forensic procedure in the form of a scraping from your mouth. If you do not consent to the taking of a mouth scraping then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
85 They are my reasons for sentence. Do the parties follow the sentence?
86 MS HOLMES: Yes, Your Honour.
87 HIS HONOUR: Sorry, go on.
88 MS HOLMES: Your Honour, my instructor has a recognisance release order that she can complete in those terms and send through to Your Honour for signing if that's appropriate.
89 HIS HONOUR: Yes, thank you. All right, we'll have that done. So there's nothing else that - well, look if there's anything technical in relation to recognisance I haven't stated your instructor can bring that to my attention. Otherwise my main concern was to make sure that the parties understood the effect of it and if there's any technical error in relation to the application of it.
90
MS HOLMES: Yes, Your Honour. So my understanding of the way that
Your Honour's framed the recognisance release order is that it's a 3 year term of imprisonment commencing on 28 October so there'll be 3 months served on the State charges before the commencement of the federal sentence. Release after serving 15 months and then the good behaviour period is, on my calculation, to be the 21 months that's outstanding on the 3 years. Is that as Your Honour intended?
91
HIS HONOUR: It is. And with the PSD of 57 days my understanding or my intention is that, that has the effect that the recognisance will be entered into
18 months from today less the 57 days.
92 MS HOLMES: Yes., Your Honour. I can't see any issue with that.
93 HIS HONOUR: I mean that's, to me, that's the way it should operate. I've thought about it, I found this matter difficult to give effect to the intention. But I wanted to make my intention clear. So if there is any view different to that, I'll expect it to be brought to my attention.
94 MS HOLMES: Yes Your Honour, I'm just considering the pre-sentence detention which would, I believe ordinarily come off the sentence first in time. I'm just wondering whether – I would be concerned that if the pre-sentence detention comes off the State sentence that is first in time, I'm just – I'm just working through the effect that might have on the sentence - - -
95 HIS HONOUR: No, I know what you're saying and that was something that had come to my mind as well, that's why I've raised it.
96 MS HOLMES: I'm just wondering whether the date that the federal sentence commences, should be 57 days earlier than 28 October, so that way effectively the three months that you're intending that – the – that Mr Mathuran serves is effectively the 57 days that he's already served, plus 33 days and then the recognisance release order starts. It's just something that I'm concerned might have some – pose some difficulties in terms of sentence management.
97 HIS HONOUR: I don't want to – I'll do that if that's the way that's going to give effect to my intention, but I don't want to just do this on the fly. So I mean - - -
98 MS HOLMES: Yes Your Honour. I'm raising these things for Your Honour but also for my instructor who's listening on who usually assists in these matters as well. I do a Commonwealth matters, but this is one of those ones that falls on the very edge of being quite technical. I'm just - - -
99 HIS HONOUR: Well the reason – I mean, I could have made everything concurrent and set a recognisance of 18 months, but then that would be artificial and it would be given that I'd concluded, there should be some cumulation of the State matter.
100
MS HOLMES: Yes, no I understand that Your Honour I'm just does
Your Honour have any concern with the suggestion of, in declaring the pre-sentence detention. All that changes is the commencement date of the Federal sentence.
101 HIS HONOUR: No look, I mean, what – really what I want to know is equivocally, sorry unequivocally, whether the sentence I've just imposed gives effect to my intention or it doesn't. If it doesn't I'll have to revisit it. But I'm not going to revisit it unless I'm told it doesn't.
102 MS GARDE-WILSON: Apologies Your Honour, there's another thing that comes into play. Because he has been in lockdown for effectively the 14 days quarantine and continued lockdown which is approximately 46 days, once he is sentenced by Your Honour, there will be emergency management days automatically credited to him, which will cause that State sentence to finish a lot earlier than 3 months.
103 HIS HONOUR: Yes. All right, well look I had been aware of the lockdown - - -
104 MS GARDE-WILSON: Well we don't have control of anything like that and you have - -
105 HIS HONOUR: And it's not - - -
106 MS GARDE-WILSON: - that will be automatically applied to any prisoner who's been placed in a lockdown situation. The rate is, from my understanding from other cases, sometimes one for one, but they're not notified in relation to that, they're just automatically applied by central records.
107 HIS HONOUR: Yes. No, look I've – I'm aware of that and I've been told in some cases, it's four to one, but I'm of the view that that's not a matter I can have regard to. That's an administrative matter that might benefit him, I can't see anyway that it will result in him doing more time than what my stated intention is.
108 MS GARDE-WILSON: I would think that if Your Honour was to (indistinct) the sentence that's currently been imposed there could be an automatically kickback right now, such as that state sentence might be dealt with in the next couple of days and therefore the Commonwealth offence won't commence for a couple of months.
109 HIS HONOUR: Yes, well really? It couldn't be that – it wouldn't be that extreme would it? Because effectively he's got 9 months – 9 months in State sentences, because the three sentences are concurrent. Nine months in State sentences, 3 months into which the Commonwealth sentence commences. The emergency management surely wouldn't mean the 9 month sentence is going to expire before 3 months.
110 MS GARDE-WILSON: No.
111 HIS HONOUR: I wouldn't have thought. So look I'm going to stand down.
112 MS HOLMES: Yes.
113 HIS HONOUR: Ms Holmes, yes you want to say something?
114 MS HOLMES: Yes Your Honour. I just wanted to reiterate that I think that if Your Honour's intention is for him to serve 3 months on the State charges, before entering into the Federal sentence, to have that Federal sentence commencing on 28 October, will mean that he won't get the benefit of the pre-sentence detention on the State – on the State sentences, unless – because the pre-sentence detention should come off the sentences first in time. So - - -
115 HIS HONOUR: Which would be the State one, wouldn't it?
116 MS HOLMES: - - - in my submission. Yes. If Your Honour leaves the sentence as it is, my submission is that he will end up serving more than 3 months, which was Your Honour's stated intention on the State sentences. So I think that the commencement date of 28 October 2020, should take into account, the 57 days pre-sentence detention, that would be my submission, in order for the matter to be – the sentence to effect what Your Honour's intention is.
117 HIS HONOUR: Sorry, say that last bit again? The sentence should commence?
118 MS HOLMES: I think that the commencement date of 28 October should be brought forward, the 57 pre-sentence days, otherwise the sentence won't take into account the pre-sentence detention.
119 HIS HONOUR: Right.
120 MS HOLMES: Because Your Honour's commencing at 3 months from today, not 3 months from today, taking into account the 57 days pre-sentence detention.
121 HIS HONOUR: Yes.
122 MS GARDE-WILSON: Perhaps another option in relation to the pre-sentence to the Commonwealth.
123 HIS HONOUR: Sorry, go on Ms Garde-Wilson, yes, sorry?
124 MS GARDE-WILSON: Well perhaps another way to address it is to apply the pre-sentence detention to the Commonwealth charges only.
125
HIS HONOUR: Yes, I thought about that, I'm not sure if that can be done. There doesn't seem to be a specific provision about that. It's just you apply PSD,
but - - -
126 MS HOLMES: Your Honour, I think my instructor is now telling me that that can be done.
127 HIS HONOUR: That can be done, can it?
128 MS HOLMES: That – yes, so I'm sorry Your Honour, I've led Your Honour astray. You can leave it there, as long as it's stated that the pre-sentence detention is – that that's what – that's Your Honour's intention. It can be deducted administratively in that fashion.
129 HIS HONOUR: All right. Thank you both I - - -
130 MS HOLMES: I apologise Your Honour I wasn't aware that that could – I - - -
131
HIS HONOUR: No, no, look these are – it's difficult. And it's always, no matter what the combination of State and Federal is, it always seems to pose some difficulty and it's hard to get your head around, even when you were explaining then, I suddenly realised, yes of course, it's 3 months and that'll be 18 months and he won't get credit for the 2 months he's done, but, or thereabouts.
But - - -
132 MS HOLMES: Yes, sorry Your Honour, I was just concerned that he would serve more time if, if the pre-sentence detention wasn't considered on the – was considered on the State charges, but I have it confirmed that it can be taken into account on the Commonwealth matters and they were administratively from the Commonwealth matter.
133 HIS HONOUR: All right. Well I think that's the way, yes, go on - - -
134 MS HOLMES: I apologise, I've just made that far more difficult than it needed to be.
135 HIS HONOUR: No need to apologise. No.
136 MS HOLMES: My instructor will complete the paperwork for the recognisance release order, 3 years imprisonment, commencing on 28 October, to be released after 15 months on a recognisance in the sum of $1500 to be released – sorry for – with the condition to be of good behaviour for 21 months.
137 HIS HONOUR: Yes.
138 MS HOLMES: I've just confirmed that because my instructor's listening.
139 HIS HONOUR: All right. Yes.
140 MS HOLMES: So she'll complete that paperwork now and send it through to Your Honour.
141 HIS HONOUR: All right, thank you. Now I'll just add to that just to clarify, I think that must be right, but it has to – it has to attach to the Commonwealth matters, otherwise it's on whatever view of it, it will be 18 months from today, which is not my intention. It's 18 months less 57 days, before he's released on recognisance.
142 MS HOLMES: Yes, Your Honour.
143 HIS HONOUR: So to make it abundantly clear, I declare that he served 57 days pre-sentence detention 57 days, pre-sentence detention in relation to this matter and that that amount should be deducted from the period to be served prior to release on recognisance. In other words, the Commonwealth matter.
144 MS HOLMES: Thank you, Your Honour.
145 HIS HONOUR: Look Ms Garde-Wilson, I've made my intention as clear as I think I can. Apologies Mr Mathuran for what must sound very confusing. All I'll say is if - I think everyone understands my intention, if there's any confusion or need to rectify anything, just mention it to me and we'll bring the matter back.
146 MS GARDE-WILSON: Thank you Your Honour.
147 HIS HONOUR: Thank you I'll adjourn the court.
148
MS HOLMES: Thank you, Your Honour. Your Honour, just in terms – sorry, before Your Honour completes the matter. The effect of the recognisance release order under the Commonwealth Crimes Act needs to be explained to Mr Mathuran and that's usually something that's done and then he signs it with Your Honour's associate. Given that it's not in front of him or Your Honour at the moment, I can't see any issue with it being explained in general terms and the matter – the orders themselves being completed whilst – once
Your Honour's off the bench.
149 HIS HONOUR: Yes. All right, well look I've explained the effect of it that you'll be released on recognisance within 18 months less 57 days Mr Mathuran and that's for you to be on recognisance to be of good behaviour for the remainder, which is a 21 month period, recognisance of $1500 and if you breach that recognisance, you can be dealt with by me. The precise terms will be explained to you at the point of signing it. Are you happy with that Ms Holmes?
150 MS HOLMES: Yes Your Honour.
151 HIS HONOUR: All right, thank you. We'll adjourn the court, we'll receive the recognisance and endeavour to have that finalised. As I said, if there's any issue, we'll bring the matter back.
152 MS GARDE-WILSON: If the court pleases.
153 MS HOLMES: Your Honour.
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