Director of Public Prosecutions v Matthews
[2022] VCC 62
•2 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RORY MATTHEWS |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 December 2021 and 15 December 2021 |
| DATE OF SENTENCE: | 2 February 2022 |
| CASE MAY BE CITED AS: | DPP v Matthews |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 62 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of trafficking a drug of dependence in not less than a commercial quantity – four charges of trafficking a drug of dependence – four charges of possession of a drug of dependence – a charge of handling stolen goods – a charge of dealing with property suspected of being the proceeds of crime – role in operation analogous to a “crop sitter” – prior criminal history of narrow compass – early plea of guilty – accused has very good prospects of rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited:Verdins v R [2007] 16 VR 269; Gregory (a Pseudonym) v R [2017] VSCA 151; DPP v Kabba [2016] VCC 1760; Worboyes v R [2021] VSCA 169; Chenhall v R [2021] VSCA 175; Osman v R [2021] VSCA 176
Sentence:Total effective sentence of 54 months’ imprisonment with a non-parole period of 27 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. McConaghy | Office of Public Prosecutions |
| For the Accused | Mr L. Cameron | Furstenberg Law |
HIS HONOUR:
Introduction
1Mr Matthews, at the outset, I propose to sentence you to a total of 54 months' imprisonment and fix a non-parole period of 27 months' imprisonment. There will be two days of pre-sentence detention credited as time served under these sentences. I will now explain how I arrived at those sentences.
2You have pleaded guilty to two charges of trafficking a drug of dependence in not less than a commercial quantity, four charges of trafficking a drug of dependence, four charges of possession of a drug of dependence, a charge of handling stolen goods and a charge of dealing with property suspected of being the proceeds of crime.
3The maximum penalties for these charges are:
(a) trafficking a commercial quantity of a drug of dependence - 25 years' imprisonment;
(b) trafficking a drug of dependence - 15 years' imprisonment;
(c) possession of a drug of dependence - five years' imprisonment or a fine not exceeding 400 penalty units;
(d) handling stolen goods - 15 years' imprisonment; and
(e) dealing with property suspected of being the proceeds of crime - two years' imprisonment.
Circumstances
4From July 2020, you lived in an apartment of The Eminence Hotel in Queensberry Street, Carlton. You lived there alone. Each month you met the owner of the apartment and paid $2,300 for a month's rent.
5On 5 January 2021 at about 8 am, members of Victoria Police searched the apartment. You were not present. In the bedroom, they found many zip lock bags and other bags containing pills, rock, powders, tablets, green vegetable matter, brown viscous substance, white crystal and various cards. They also found cash totalling $36,474.70.
6In all, they found:
(a) 821.9 grams of MDMA: the subject of Charge 1;
(b) 185.4 grams of methylamphetamine: the subject of Charge 2;
(c) 119.9 grams of cocaine: the subject of Charge 3;
(d) 86.9 grams of ketamine: the subject of Charge 4;
(e) 9.7 grams of Nexus: the subject of Charge 5;
(f) 9,905 milligrams of LSD: the subject of Charge 6;
(g) 1.1 grams of MDA: the subject of Charge 7;
(h) 8.4 grams of drostanolone: the subject of Charge 8;
(i) 0.7 gram of DMT: the subject of Charge 9; and
(j) 214.5 grams of cannabis L: the subject of Charge 10.
7At the request of the police, you went to a police station. You were arrested. You gave ‘no comment’ answers to questions asked of you. You remained in custody for two days before being bailed.
Criminal history
8Between 22 January 2018 and 3 April 2019, you have appeared in the Magistrates' Court on four occasions and been found guilty or convicted of 12 charges. On each occasion, you have received a Community Correction Order. All, except the last, you have contravened. Your contraventions have resulted in further Community Correction Orders. You have never been sentenced to imprisonment.
Personal
9You are 26 now. You are single and live with your parents in East Brunswick. Living with your parents has been a condition of your bail. Your parents are happy to accommodate you. You are like the prodigal son. During the plea, your father sat beside you.
10You were born in Melbourne and have an older brother, Declan. You describe a happy upbringing and considered yourself lucky.
11You attended school in Brunswick. You had many friends at school but you struggled academically. Despite this, you obtained a VCAL certificate.
12After obtaining your VCAL certificate, you became very depressed and largely remained in your bedroom. You contemplated suicide. To help you, an uncle took you to the USA and Cuba as part of his work. The trip helped in the sense you no longer had suicidal thoughts but you started smoking cannabis again. You became so concerned about your cannabis consumption that you went to live with your then girlfriend in Queenscliff in order to detoxify.
13You obtained an apprenticeship in warehousing and logistics. You found further work in landscaping and removals. However, substance abuse has marred your life, resulting in the loss of employment.
14At about 13, you started smoking cannabis with your friends. At 14, it was a daily habit. The intensity of your use peaked at 18. You then stopped until you were 21 due to intense depression. You resumed briefly before stopping completely.
15However, when 20, you started using amphetamines and progressed to methamphetamines. Your use increased between 23 and 25 and ceased when you were arrested. Your use became heavy, up to a gram a day.
16As often happens, you have used prescription drugs in the past as well as a variety of other drugs including hallucinogens, solvents, cocaine, MDMA and nitrous oxide but methamphetamine stands out as your main drug of dependence.
17At present, you are unemployed. Your attempts at working in hospitality were thwarted by the restrictions caused by the pandemic.
Court Integrated Services Program
18A condition of your undertaking of bail is to obey the reasonable directions of the Court Integrated Services Program (“CISP”). I have been shown the first progress report, dated 1 April 2021, and a final report, dated 30 April 2021.
19The final report summarises the services offered to you and your responses.
20First, you underwent a comprehensive drug and alcohol assessment with ACSO. You attended two appointments for one-on-one counselling. At the second appointment, you said you did not see the need for such counselling and there were no treatment goals towards which you wanted to work. You denied having any problem with substance use and were exited early from counselling.
21Second, your general practitioner devised a mental health care plan. You were referred to a psychologist, Ms Reilly. You saw her four times and she said you were engaging well and made some good progress. You intended to continue to see her.
22Third, you had 10 case management attendances with Ms Marriott, your Court Integrated Services Program case manager. At her suggestion, you obtained urine analyses.
Urine Analyses
23On 11 occasions, between 5 April 2021 and 13 January 2022, samples of your urine were analysed. None of the analyses revealed the presence of certain drugs or their metabolites.
Psychiatrist
24Jacqueline Rakov is a consultant forensic psychiatrist. On 3 December 2021, she interviewed you at the request of your solicitors.[1] She also interviewed your parents.
[1] Report dated 6 December 2021.
25Save for your fidgeting, her mental state examination of you was unremarkable.
26Dr Rakov found a strong family history of depression on your father's side. His mother and grandfather both suicided. One of your father's brothers suffered from severe depression and several cousins suffered from depression.
27She summarised your view of your offending:[2]
‘Mr. Matthews reflected that he had been able to be recruited as a low-level drug sitter because he himself was so mired in addiction. Having found himself in the company of those that created the perception of a symbiotic arrangement, as well as his tacit acceptance that he would suicide sooner or later, meant he was acting without much regard for any repercussion beyond simply fueling (sic) his substance use.’
[2] Report at paragraph 9.3.
28An aspect of Dr Rakov's report is her apparent candour. In the past, you have suffered from a major depressive disorder and a substance use disorder. Both are in remission at present. When not in remission and active, the former disorder is characterised by low mood, consistent feelings of guilt, loss of interest in general activities, thoughts of suicide and sleep disturbance. She does not say this disorder affected you at the time of your offending.
29The substance abuse disorder was not in remission when you offended. It is now, through the efforts of the Court Integrated Services Program and your psychologist.
30Dr Rakov diagnosed another disorder, Attention Deficit Hyperactivity Disorder, which is not in remission. Although not in remission at present, it is not presenting as an overt disability or deficit. For you, its major characteristic is the adverse effect on your concentration. The diagnosis was a revelation to you and your parents as it explained some of your earlier behaviour.
31She saw your first major depressive episode as spurring on your substance abuse. It was a form of self-medication, in that your substance abuse was a way you could dissociate while struggling with your depression.
32For the future, Dr Rakov recommended treatment for both your depressive condition and your Attention Deficit Hyperactivity Disorder. Apart from noting the availability of treatment in prison, Dr Rakov does not suggest you suffering from these conditions will make your time in prison more difficult than those of someone without those disorders.
33Speaking more generally, your counsel does not rely on any of the propositions in the case of Verdins v R[3].
[3] [2007] 16 VR 269.
Discussion
34Section 5(1) of the Sentencing Act 1991 (“the Act”) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
35In most cases, one or more of those purposes are relevant. It is true in your case.
36Plainly, the purposes of deterring you and deterring others from committing these or similar offences are important. The community cannot tolerate people committing the offences you have committed. My sentences should have such a deterrent effect. My sentences should manifest a denunciation of these offences. They should also act to protect the community from you. However, as I will explain shortly, your prospects of rehabilitation are very good. As such, the purposes of deterring you and protecting the community from you assume a lesser importance.
37Aspects of these purposes may be achieved through your rehabilitation. For if you are rehabilitated, then you will not re-offend by committing these or similar offences again.
38Section 5(2) of the Sentencing Act sets out factors which I must, if they are relevant, take into account in sentencing you.
39Gravity, culpability and degree of responsibility
Gravity, Culpability and Degree of Responsibility
40Regarding the gravity of your offences and your culpability and degree of responsibility, your counsel referred me to the case of Gregory (a Pseudonym) v R where the court observed:[4]
“…that quantity is a highly relevant consideration in sentencing for trafficking offences. Counsel for BG accepted this was so. Other things being equal, the greater the quantity trafficked the more serious the offence. There are, of course, other important indicators of offence seriousness — in particular, the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.”
[4] [2017] VSCA 151 at [24].
41Dealing with each drug in turn, the threshold of 'commercial quantity' is:
(a) MDMA - 100 grams and for a large commercial quantity, 1,000 grams;
(b) Methylamphetamine - 50 grams while for a large commercial quantity, 750 grams;
(c) Cocaine - 250 grams;
(d) Ketamine - 100 grams;
(e) Nexus - 100 grams;
(f) LSD - 500 milligrams;
(g) MDA - 100 grams;
(h) Drostanalone - 5 kilograms; and
(i) Cannabis L - 25 kilograms
42As your counsel pointed out, the amount of MDMA is 8.2 times the commercial quantity; methylamphetamine, 3.7 times; cocaine, slightly less than half; ketamine, almost nine tenths. The other drugs, whether trafficked or possessed, were well below their commercial quantity thresholds. I will say a few words about LSD shortly.
43The most striking quantity is that of MDMA which approached within 20 per cent of the threshold for a large commercial quantity of that drug.
44The police found 9,905 milligrams of LSD. Although a very large amount of that drug, it is not alleged the quantity represents the drug in its pure form. In fact, it is not alleged the quantity exceeds the threshold for a commercial quantity of the drug. On the available material, I find there was a significant amount of the drug found, but it did not exceed the threshold for a commercial quantity.
45Your role was to live in the apartment where drugs and money were held. You were a caretaker of them and analogous to the role of a crop sitter. In return, you received accommodation and drugs for your own use. This was why you committed the offences and the extent of your reward. The issue of payment for your services did not arise. No doubt, you were given the moneys through which you paid the rent and enjoyed rent-free accommodation but you offended because of your drug addiction and the reward of free drugs.
46As to the duration of your offences, although you occupied the apartment from July 2020 until your arrest in January 2021, the charges themselves specify a single day. I will sentence you on the latter basis.
47I have summarised your criminal history. Although of relatively narrow compass, it does point to your drug addictions.
48There are none of the recognised aggravating features for this type of offending.
49The amount of $36,000 is significant. The five identification cards are less so in the scheme of cases contemplated by the charge of handling stolen goods.
50I agree with your counsel's submission that, overall, the offences fall into the lower end of the seriousness.
Current Sentencing Practice
51Understandably, given the wide range of circumstances encompassed by these offences, neither counsel made any submission regarding current sentencing practices except the prosecutor drew my attention to DPP v Kabba,[5] a sentencing decision of a judge of this court, and your counsel to the principles set out in Gregory's case.
[5] [2016] VCC 1760.
52In Gregory's case, the court said the current sentencing practice for commercial quantity trafficking is inadequate and needs to be uplifted. In the context of the case it was hearing, the court observed:[6]
“As with any other category of offending, there is wide variation in the seriousness of CQ trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.
It would therefore be expected — and Parliament must be taken to have intended — that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
· the quantity involved approached the LCQ threshold;
· the offender was in charge of the trafficking business;
· the business was conducted for a substantial period;
· the offender pleaded not guilty; and/or
· the offender had relevant prior convictions.”
[6] [2017] VSCA 151 at [97] and [98].
53The sentence in Kabba's case was delivered the year before the observations in Gregory's case. As I said earlier, the court in Gregory's case made clear that current sentencing practice for commercial quantity trafficking was inadequate. Accordingly, the sentences in Kabba's case are of little assistance.
Prospects of Rehabilitation
54You are still a young person. You were 25 at the time of the offending. Generally speaking, young persons have a greater capacity to reform than an older person who is set in his or her ways. You are capable of reform. Evidence of this emerges in your progress with the Court Integrated Services Program and your successful undertaking of drug screens over many months.
55Further evidence comes from your father. This is part of what he wrote on 27 September 2021:
“Sandie [your mother] and I believe that Rory has turned his life around in the last 9 months. He has been drug free for the first time in many years and this has significantly improved his physical and mental health. He has re-engaged with Sandie and I, other family members, his friendship group from his secondary school years and obtained ongoing employment, which was unfortunately suspended due to the latest COVID lockdown arrangements.
Rory is genuinely remorseful for his prior drug taking and unlawful activities. He has assured us that he will not reoffend or use drugs again. We believe that Rory will adhere to these commitments...”
56Your parents speak of your genuine remorse. They are in a good position to judge. Your guilty pleas are further evidence of your remorse. I accept you are genuinely remorseful for your offending. Usually, such remorse accompanies a determination not to reoffend. Whether you would reoffend depends on the extent of your determination.
57As you have anticipated, I will impose terms of imprisonment. My sentence will have a deterrent effect upon you especially since you have never been sentenced to imprisonment before.
58You have the very strong support of your family. As your father said, you have resumed contact with your family and school friends. You re-entered the workforce even though this came to an end due to the COVID-19 restrictions.
59Overall, your prospects of rehabilitation are very good.
Guilty Pleas
60Returning to your pleas of guilty. I accept your intention to plead guilty was indicated at the earliest reasonable opportunity. As I said earlier, your pleas are indicative of your remorse for your offending.
61In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed. At the very least, it avoids the need for a trial. This saves time and expense of a trial. It allows other trials to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence, which generally is an onerous task but, it would not be so for the possible witnesses in your case.
62Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently. This has prompted the Court of Appeal in a case of Worboyes v R[7] to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time. It is worth quoting a passage from the Court's judgment which shows the emphasis it placed on pleas of guilty in this time of restriction:[8]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[7][2021] VSCA 169.
[8] [2021] VSCA 169 at 35.
63Your counsel referred me to passages from Chenhall v R[9] to similar effect.
[9][2021] VSCA 175 at [34]-[35].
64Overall, you must receive a very significant discount on the sentence you would have received in the absence of your pleas of guilty.
65It is true that imprisonment during the pandemic is different from imprisonment in non-pandemic times. During these times, you are likely to have fewer face-to-face meetings with your parents, family and friends. You are also likely to have restricted access to educational and other programmes. You will live in the ever present fear of being infected by the virus and, if so, the effect upon your health. Being in a confined area increases the possibility of infection. To counteract this, prison authorities may impose restrictions so that you may find even less freedom of movement in the prison than in normal times. While the pandemic continues, your experience of imprisonment will be more difficult than in normal times.
Totality
66Given the number and nature of the charges, your counsel raised the principle of totality and referred to its recent explanation by Emerton JA in Osman v R:[10]
“The principle requires the sentencing judge to stand back and assess not just the individual sentences but also to review the aggregate sentence and consider whether the aggregate properly reflects the degree of criminality involved and is ‘just and appropriate’ and ‘not excessive’.”
[10] [2021] VSCA 176 at [102].
67As to your level of criminality, you looked after a wide range of drugs of dependence, some in very significant quantities, on a single day, and in terms of a drug trafficking hierarchy, in the lowly form of a caretaker or crop sitter, or analogous to a crop sitter. There are several strongly mitigating factors including the timing and nature of your guilty pleas and your prospects of rehabilitation.
Sentence
68On Charge 1, trafficking MDMA in not less than a commercial quantity, I will sentence you to 36 months' imprisonment
69On Charge 2, trafficking in methylamphetamine in not less than a commercial quantity, I will sentence you to 24 months' imprisonment;
70On Charge 3, trafficking in cocaine, I will sentence you to 15 months' imprisonment;
71On Charge 4, trafficking in ketamine, I will sentence you to 15 months' imprisonment;
72On Charge 5, trafficking in nexus, I will sentence you to nine months' imprisonment;
73On Charge 6, trafficking in LSD, I will sentence you to 15 months' imprisonment;
74On Charge 7, possessing MDA, I will sentence you to two months' imprisonment;
75On Charge 8, possessing drostanolone, I will sentence you to two month's imprisonment;
76On Charge 9, possessing DMT, I will sentence you to two months' imprisonment;
77On Charge 10, possessing cannabis, I will sentence you to three months' imprisonment.
78On Charge 11, dishonestly retaining of stolen goods, I will sentence you to one month's imprisonment.
79On the summary charge of dealing with property suspected of being the proceeds of crime, I will sentence you to three months' imprisonment.
80The sentence on Charge 1 is the base sentence. Twelve months of the sentence on Charge 2 and three months of the sentence on Charge 3 and on Charge 4 are to be served cumulatively upon the sentence on Charge 1 and upon themselves. The total effective sentence is 54 months' imprisonment.
81Parole is intended to provide for the mitigation of punishment in favour of rehabilitation through conditional freedom, when appropriate, once the person has served the minimum time that justice requires must be served having regard to all the circumstances. Taking into account the matters above, I will set a non-parole period of 27 months' imprisonment.
Pre-Sentence Detention
82I declare that your two days of pre-sentence detention will count as time served under my sentences.
Section 6AAA Declaration
83If you had not pleaded guilty to these offences and had been found guilty, I would have sentenced you to a total effective sentence of 80 months' imprisonment with a non-parole period of 40 months' imprisonment.
Forfeiture and Disposal Orders
84I will make the forfeiture and disposal orders in the terms sought.
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