Director of Public Prosecutions v Verschaeren
[2017] VCC 2005
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01701
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON VERSCHAEREN |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2017 | |
DATE OF SENTENCE: | 21 December 2017 | |
CASE MAY BE CITED AS: | DPP v Verschaeren | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2005 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence.
Catchwords: One charge trafficking methylamphetamine – Early plea – Two drug trafficking priors – Applicability of Verdins principles 2, 5 & 6 – Fair prospects of rehabilitation.
Legislation Cited: Drugs Poisons Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited:R v Verdins (2007) 16 VR 269; DPP v O'Neill (2011) 47 VR 395; R v Renzella [1997] 2 VR 88; El-Waly v The Queen (2012) 46 VR 656; Boulton v The Queen (2015) 46 VR 308; Dawid v The Director of Public Prosecutions [2013] VSCA 64; Fernando v The Queen [2017] VSCA 208; Haddara v The Queen [2016] VSCA 168.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering (Plea) | Mr J Cain, Solicitor for Public Prosecutions |
| Ms I Moffatt (Sentence) | ||
| For the Accused | Mr B R Keating | Slink and Keating |
HIS HONOUR:
1 Jason Verschaeren, you have pleaded guilty to one charge of trafficking a drug of dependence, namely methylamphetamine.[1]
[1]Contrary to s 71AC Drugs, Poisons and Controlled Substances Act 1981.
2 The maximum penalty for this offence is 15 years' imprisonment.
3 You were 28 years old at the time of committing this offence. You are now 29.
Summary of the offending
4 Your offending is detailed in summary of prosecution opening, Exhibit 1 on your plea. It is sufficient for these remarks to say the following about your offending.
5 You have pleaded guilty to a charge of trafficking between 13 March 2016 and 3 January 2017.
6 On 13 March 2016, a package containing one litre of hypophosphorous acid was imported by you and subsequently delivered to your home address. This is a precursor chemical which can be used to manufacture methylamphetamine. On three other occasions in 2016, once in September, October and December, you again imported hypophosphorous acid. For each of the four importations, you ordered the chemical to be delivered to your home address in Pakenham but used several different false names. The importations in September, October and December were not permitted to be delivered to you.
7 Between 17 and 30 November 2016, you purchased scientific glassware which was delivered to your home address.
8 Police intercepted text messages between you and unknown associates between the period 20 October to 14 December 2016 in which you discussed the manufacturing by you of methylamphetamine from pseudoephedrine and the sale of methylamphetamine to others.
9 On 21 December 2016, police executed a search warrant at your home address in Pakenham. In your bedroom, police located scientific glassware which contained 106.2 g of methylamphetamine.
10 During this search of your bedroom, police also located other chemicals, glassware and drug paraphernalia, including 12.1 g of pseudoephedrine, 6.7 g of ephedrine and 5.3 g of iodine, hydrochloric acid and hypophosphorous acid.
11 You were arrested and interviewed on this date but made no admissions.
12 Prior to you arrest, you had ordered 700 pseudoephedrine tablets online. This was imported on 3 January 2017 but was not permitted to be delivered to your address.
13 You have pleaded guilty to this charge of trafficking on the basis that you manufactured methylamphetamine and that you possessed methylamphetamine for sale.
Criminal history
14 I turn to your criminal history.
15 Your history, commencing in 2008, predominantly concerns driving and road safety related offences, with some dishonesty matters.
16 Relevantly, however, you have also have prior convictions for drug possession and drug trafficking offences.
17 On 23 October 2008 you were sentenced at the Warrnambool Magistrates' Court on one charge of trafficking amphetamine to nine months' detention in a youth training centre. You were also sentenced to some concurrent detention for drug possession charges. You were 19 years old at the time of this offending and completing your apprenticeship.
18 Then on 20 October 2015, you were sentenced at the Melbourne Magistrates' Court for a number of offences, the most serious of which was a trafficking 1,4-Butanediol (also known as GHB). You were 27 years old at the time. You were sentenced to an aggregate term of imprisonment of 12 months which was wholly suspended for 24 months.
19 Three days after you received this suspended sentence, on 23 October 2015 you were sentenced at the Dandenong Magistrates' Court. You were breached in relation to a three month suspended sentence imposed in 2014 and the sentence was reinstated. On the same day, you were also sentenced to a Community Correction Order (“CCO”) for driving related offences. This was a therapeutic CCO with supervision and treatment and rehabilitation conditions only.
20 Your current offending occurred whilst you were serving a suspended sentence and a CCO. I will return to these matters.
Gravity of the offending and your role
21 I turn to an assessment of the gravity of your offending.
22 The sentencing regime for drug trafficking offences is a quantity-based regime. While quantity is not determinative of seriousness, it is a significant factor and all other things being equal, the larger the quantity, the more serious the offence. The potential for harm to the community is partly measured by the quantity of the prohibited drug involved.
23 The minimum quantity of methylamphetamine which would meet the threshold of a deemed trafficable quantity is 3 g. Police located methylamphetamine that was 35 times this threshold. This is a significant amount of methylamphetamine. However, this does not rise to near the level of a commercial quantity, which is 500 g.
24 There are a number of other features of this offending which demonstrate the scope of your criminality.
25 Your offending occurred over a prolonged period, some ten months.
26 While you are not to be separately punished for the importations, the effort you demonstrated in arranging and pursuing them is a relevant contextual factor going to the gravity of this offending. On several occasions, you imported chemicals for the purpose of manufacturing drugs. You imported more than one type of precursor chemical. While you provided your home address as your delivery address, you sought to conceal your identity by using a range of false names.
27 You obtained other chemicals and scientific glassware for the purposes of manufacturing.
28 You were a self-employed manufacturer. You were not working for anybody. You were in engaged the activity of manufacturing drugs with the intention of selling them. In that sense, your operation was commercial, even though I accept that you were also using some of the drugs you manufactured to satisfy your own drug habit. To that end, you were communicating with other associates about the weight of drugs and problems you were encountering in the manufacture of the drugs. Although I have characterised your operation as commercial, there is no evidence of profit. I do not find that you have received any enrichment as a result of your offending.
29 Your counsel submitted that your offending was not particularly sophisticated; it was conducted at your house, not at a laboratory, using simple scientific equipment. Notwithstanding this, I would characterise your offending as organised, determined and persistent.
30 Your current offending occurred during the operational period of both the suspended sentence imposed on 20 October 2015 for drug trafficking and the CCO imposed on 23 October 2015. You acted in blatant disregard of these orders. This disregard for the law and breach of these orders makes your offending more serious in this instance.
31 Overall, I regard this instance of offending as a serious example of trafficking.
Personal circumstances
32 I turn to your personal circumstances.
33 As I have already stated, you are now 29 years of age. You are almost 30.
34 Prior to your arrest, you were living with your mother and younger brother at your home address in Pakenham. You have the support of your family, a number of whom were present at your plea hearing, including your mother, two half-sisters and two nephews, and I notice them in court today and acknowledge them.
35 You are the eldest of two sons to your parents. Your parents divorced when you were 14 years old. You have three older half-siblings from your mother's previous marriage. You have a positive relationship with your mother and siblings. Your mother confirmed at your plea hearing that when you are eventually released from custody you will be able to return to live with her.
36 You had a difficult upbringing and you were treated poorly by your father. Your father was verbally and psychologically abusive towards you. Your father had issues with alcohol and could be aggressive. I take these matters into account.
37 You attended at Hillcrest Private School for most of your schooling, where you were socially isolated and bullied. You did not try to form friendships, preferring to be on your own.
38 After you completed Year 10, you left school and commenced a bricklayer's apprenticeship. I have been told you felt that you were forced to leave school by your father who was a self-employed bricklayer. You worked for your father for a number of years. During this time your self-esteem and worth were eroded by further psychological abuse from your father, who would repeatedly put you down and tell you were "useless." However, to your credit you managed to complete your apprenticeship in bricklaying.
39 You commenced drinking quite heavily, a six pack of premixed spirits daily, while you worked with your father. Around this time you were also introduced to methylamphetamine by your work colleagues. Your use gradually increased and you were using about 1 g per day. In an effort to counter-balance the stimulant effect of the methylamphetamine, you were also using cannabis daily. You have also been addicted to OxyContin. While you have been in the community you continued to use drugs on a daily basis.
40 You stopped working for your father and have essentially been unemployed for the last four years. Eventually, you want to re-skill and are interested in completing a plumbing apprenticeship. I am told that you will have the opportunity of working at the same plastering company as your younger brother, as a plasterer's labourer, when you are released.
41 Around 2012 you commenced a serious relationship which ended during mid-2016. Your then partner was a drug user and had her own mental health issues. She could be violent and unpredictable in her behaviour towards you.
42 You, yourself, have a history of mental health issues. Since age 14, you have experienced periods of depression and anxiety, suffered frequent panic attacks and experienced suicidal ideation as a result of your childhood experiences. Your GP prescribed you antidepressant, Diazepam, last year to manage your depression and anxiety, as your symptoms were worsening. You are currently prescribed 10 mg of Lexapro which is another antidepressant.
43 I will return to your mental health issues in a minute and discuss how I will take them into account in sentencing you.
44 In the lead up to your offending, because you were using drugs daily, you were not working, and trying to manage your mental health conditions. Your counsel submitted that your personal circumstances during the period of this offending were chaotic. I accept that this provides the context your offending but it does not provide an excuse and it was not suggested that it provides an excuse.
Plea of guilty
45 You have pleaded guilty at an early opportunity after two committal mentions and following an unsuccessful summary jurisdiction application.
46 You receive credit for the objective utilitarian benefit through the saving of time and resources associated with running a contested committal and trial.
47 I accept that your entry of the plea of guilty is also representative of some evidence of remorse and a willingness to facilitate the course of justice; you will get credit for this.
48 Your counsel submitted that it was also relevant to my assessment of your prospects for rehabilitation. I will come back to this shortly.
Mental health issues and applicability of Verdins principles
49 As I have already noted, you have a history of mental health issues. You have been previously diagnosed with and medicated for depression and anxiety and, as I said, you suffer from panic attacks and you have some history of suicidal ideation. You have been characterised by your counsel as an immature young man. I accept that characterisation.
50 Your counsel submitted that Verdins principles 2, 5 and 6 applied[2] and relied upon two reports in support of that submission: a psychological report of Carla Ferrari, dated 26 April 2017, and a psychiatric report of Dr Leon Turnbull, dated 11 October 2017. Both reports were tendered on your behalf at the plea.
[2]R v Verdins (2007) 16 VR 269.
51 Both agree that you have an anxiety disorder, though Dr Turnbull indicates that he would not currently diagnose you with a depressive condition.
52
In respect of Verdins principle 5, your counsel submitted that your social anxiety would mean a sentence of imprisonment will weigh more heavily on you than a person in normal health. Your counsel specifically relied on the opinion of
Dr Turnbull. Dr Turnbull diagnosed you as suffering from a social anxiety disorder and noted that a custodial environment made you feel vulnerable and ill at ease. He opined that you would find custody more onerous than those who do not suffer from this condition "because of the vulnerability that [your] anxiety confers upon [you]." Your counsel submitted that you find it difficult to mix easily and chat to people and you have already been bullied in gaol.
53 Counsel for the prosecution's primary submission was that Verdins 5 did not apply as a social anxiety disorder was a kind of personality disorder, which the law does not regard as a relevant mental impairment for the purposes of Verdins.[3] Putting labels aside, counsel for the prosecution nevertheless accepted that there was evidence that you would experience difficulty in prison by comparison with other prisoners.
[3]The Director of Public Prosecutions v O’Neill (2011) 47 VR 395, 413 [71] 415 [76].
54 Were I required to, I would find that an anxiety disorder does fall within Verdins. In any event, whether or not your social anxiety disorder is properly characterised as mental impairment falling within Verdins, I accept that your social anxiety, which operates on your ability to socialise easily and normally, will make your experience of prison more burdensome and I will take this into account in mitigation of your sentence. This is particularly so in the context of you being an immature young man who has been bullied. Dr Turnbull was of the opinion that your development had stalled from your late teens. However, any benefit you get is moderated to some extent by the benefit you receive or will receive by breaking and remaining drug-free in custody.
55 To conclude, as I have found, if prison is going to be more difficult for you than other prisoners then this is a mitigating factor and I will take into account, whether or not it strictly falls under the Verdins principles or some other more general principle.
56 Your counsel also relied upon Verdins principle 6. The threshold test for Verdins 6 is that there must be a serious risk of imprisonment having a significant adverse effect on your mental health. Your counsel relied on the opinion of both Ms Ferrari and Dr Turnbull in support of this submission. Ms Ferrari diagnosed you as having major depressive disorder, generalized anxiety disorder and amphetamine-type substance use disorder. Ms Ferrari was of the opinion that your symptoms "may become further exacerbated" in custody. This opinion was qualified in two respects: firstly, her opinion was that it was a possibility, not probability or likelihood that your symptoms would be exacerbated and; secondly, she said that if you were able to access counselling and education programs while in custody, you would be able to address your underlying traumas and psychological symptoms. Likewise, as I have already said, Dr Turnbull identified that being in custody allowed you to detox and abstain from drugs and this would be of benefit to you. You told Dr Turnbull that you were enjoying feeling “more clear-headed” with the abeyance of drugs. While not specifically referring to a custodial setting, Dr Turnbull was of the opinion that "stable accommodation, employment or training and a weekly schedule of purposeful activity will assist" you. Prison can provide these opportunities. In all the circumstances and on the evidence of the mental health professionals, I am not satisfied that Verdins principle 6 applies.
57 In respect of Verdins principle 2, your counsel submitted that your mental health conditions may have a bearing on the kind of sentence that I will impose and the conditions in which it should be served. This was primarily directed towards the submission that I should impose a CCO and if I rejected that and imposed a term of imprisonment, your counsel submitted I should set a non-parole period and that I should set a shorter than usual non-parole period. I will come back to these considerations.
58 Your counsel eschewed any reliance on Verdins principle 1. He did not argue that your mental health condition was such as to reduce your moral culpability, but did submit that your drug use and chaotic circumstances gave you a somewhat impaired perspective. I have already said that I accept that this provides the context, but not excuse, for your offending. Indeed, I add that Dr Turnbull himself said that he could see any clear relationship between your mental health issues and your offending.
59 That all said, I take into account that despite your age you remain an immature man. Dr Turnbull said that your development essentially stalled from your late teens. While you are obviously are not to be sentenced as a youthful offender, I bear in mind your relative immaturity when assessing your moral culpability.
Subsequent matters and totality
60 Your counsel submitted that the sentence I impose in relation to these matters should be moderated by considerations of totality. To deal with this submission, I must detail your subsequent matters.
61
After you were arrested and released on bail in December 2016 on this charge, you were subsequently charged and sentenced in respect of other matters. You were remanded on a number of driving related matters on 10 March 2017. You were sentenced for these matters at the Dandenong Magistrates' Court on
9 June 2017 to 180 days' imprisonment. You had served 91 days at that time. You completed the remainder of this sentence on 5 September 2017.
62 At this time, you commenced serving time referrable to this particular matter that brings you before me, your bail having been revoked at some earlier stage.
63 Your counsel submitted that you have lost the opportunity for concurrency or some concurrency with the sentence imposed on 9 June 2017. Your counsel also submitted that I need to take a global view of your custodial history, where you have been continuously in custody since March this year.
64 I accept the principle of totality applies for the reasons advanced by your counsel. That requires me to give some consideration to the overall sentence that would have been imposed upon you, had you been sentenced for all of these matters at the same time. Specifically, I accept that I must make allowance for the fact that you have lost the opportunity for a degree of concurrency between that June sentence and the sentence which I am about to impose upon you for this offending. [4]
[4]R v Renzella [1997] 2 VR 88; El-Waly v The Queen (2012) 46 VR 656 , 673-674 [107] – [114].
Prospects of rehabilitation
65 I turn to your prospects of rehabilitation.
66 While there a number positive factors which point favourably towards your rehabilitation, I do remain concerned about your prospects.
67 Importantly, during your most recent period of incarceration, you have abstained from drug use and you are to be congratulated for that. I have been provided, by your counsel, with copies of four supervised drug urine screens which are negative for illicit substances. Your continued abstinence from drug use, particularly when you are released from custody, will greatly improve your prospects of rehabilitation.
68 During your recent period of incarceration you have sought improve yourself and have completed a number of courses including Coping with Change and a business course. I have received copies of certificates of completion for these courses.
69 You have, as I noted earlier, the continued strong support of your family.
70 You also have a demonstrated work history, qualifications and have expressed a desire to work. You have work available to you upon release as a plasterer's labourer and you have aspirations to re-skill and complete a plumbing apprenticeship. You have already completed a bricklaying apprenticeship, which I referred to earlier. You have a capacity to work.
71 As your counsel submitted, you have demonstrated some insight into your offending and your current circumstances. You have acknowledged your limitations and expressed to Dr Turnbull, amongst other things, that you want to find a normal life. Your counsel also relied on your plea of guilty at an early stage as evidence of your commitment to change and I accept that.
72 If you can address your mental health issues, this too will improve your prospects.
73 However, there are a number of matters which concern me. You have two prior convictions for drug trafficking, where you received sentences of detention or imprisonment. You committed this current offending while you were subject to a suspended sentence for drug trafficking and while you were subject to a CCO. In addition, you breached a CCO by non-compliance with conditions of this order, including treatment and rehabilitation conditions, and you have breached other court orders from your history.
74 Dr Turnbull also said that you have a lot of catching up to do in light of your immaturity and that this will be "a significant challenge."
75 I must be realistic about your prospects. I am prepared to find that your prospects are fair.
Pre-sentence detention
76 You have 106 days pre-sentence detention referrable to this sentence, not including today's date, since . the expiration of an earlier on 5 September 2017. Can I just check that the correct figure?
77 MR KEATING: Yes.
78 HIS HONOUR: All right. I will formally declare that time shortly.
Sentencing
79 The primary sentencing submission of your counsel was that a sentence of imprisonment combined with a CCO would meet all the sentencing purposes in this case. He made a submission, in part supported by his argument that Verdins principle 2 applied, namely type of disposition, that a CCO would be appropriate as it could address your mental health issues as well as meet the requirements of punishment.
80 I do not accept that a combined sentence of a Community Correction Order with a maximum of one year imprisonment is appropriate your case. I consider that the gravity of this offending, combined with your highly relevant priors and breach of two recent court orders put this kind of sentence out of the range. I accept that a community correction disposition can be both punitive and rehabilitative[5]. I have, however, concluded that certain sentencing purposes, just punishment, denunciation, and general deterrence and protection of the community cannot be sufficiently served by the making of a CCO, even with onerous conditions, and even in combination with one years' imprisonment. It is for that reason that I did not have you assessed for a CCO.
[5]Boulton v The Queen (2015) 46 VR 308.
81 Given the nature and pervasive extent of drug trafficking, principles of general deterrence and denunciation must assume substantial prominence. The sentence I impose must deter others who might be tempted by the lure of financial reward from the manufacture of illicit drugs.[6] The law also says there should be an even greater focus on general deterrence for the trafficking of methylamphetamine than when another drug is trafficked.[7]
[6]Dawid v The Director of Public Prosecutions [2013] VSCA 64 [35].
[7]Fernando v The Queen [2017] VSCA 208 [73]; Haddara v The Queen [2016] VSCA 168 [66]-[67].
82 In sentencing you today, I must also give considerable weight to the principle of specific deterrence. This is the third time you will be sentenced for drug trafficking. You have already received two custodial sentences for drug trafficking. You have not been deterred from your recent offending by these sentences. Any sentence I impose must deter you from engaging in this kind of offending again. Being in the community under a court order has just not deterred you in the past.
83 Only a term of imprisonment with a non-parole period is appropriate in your case.
84 Your counsel submitted a shorter non-parole period was warranted to allow you the possibility of a lengthy period on parole under supervision. You are someone who is immature and has mental health and drug issues. A longer parole period will, on your counsel's submission, allow you some time to segue back into the community. Your counsel made a further point that I should take into account the fact that you previously received straight sentences of imprisonment without the opportunity of parole, and that you have been in continuous custody since March of this year, which includes the straight sentence of six months in custody. Your counsel submitted that the non-parole period should be shorter than I would otherwise have set because of these circumstances.
85 I will make allowance for these matters in my sentence, including in my determination of your non-parole period. That said, in the end, the non-parole period I select must be a minimum period of imprisonment that justice requires you to serve before you become eligible for release on conditional freedom, having regard to all of the circumstances of the offending and to all of your circumstances. In my view, the matters relied upon by your counsel do not dictate that the non-parole period be especially low in proportion to the head sentence. You are not, for example, someone with very positive prospects of rehabilitation, where the community requires less in the way of protection by a lengthy period of incarceration without the possibility of parole. Indeed, in your case, the community needs protecting.
86 On charge 1, trafficking in a drug of dependence, namely methylamphetamine, I convict and sentence you to two years' and ten months' imprisonment.
87 I fix a non-parole period of 18 months' imprisonment.
88 I declare that 106 days' imprisonment has already been served under this sentence and I direct that this fact be entered into the record and that period of time that you have previously served is not including today.
89 I also declare that, pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence four years' and four months' imprisonment with a non-parole period of two years and ten months.
90 Is there anything else counsel? All right.
91 MS MOFFAT: Your Honour - - -
92 HIS HONOUR: You can take Mr Verschaeren away. Sorry.
93 MS MOFFAT: Your Honour, there is a disposal order.
94 HIS HONOUR: That is right, yes. No objections to that, Mr Keating?
95 MR KEATING: No, no.
96
HIS HONOUR: All right. Well, I will sign those. You can be seated,
Mr Verschaeren. All right, signed copies will come down. All right. Well, if
Mr Verschaeren can be taken away, please?
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