Director of Public Prosecutions v Verwey

[2018] VCC 1131

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02459

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAY VERWEY

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2018
DATE OF SENTENCE:	25 July 2018
CASE MAY BE CITED AS:	DPP v Verwey
MEDIUM NEUTRAL CITATION:	[2018] VCC 1131

REASONS FOR SENTENCE
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Subject:
Catchwords:              Importation of a commercial quantity of cocaine
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Derby	Office of Public Prosecutions
For the Accused	Mr. C. Terry	Leanne Warren & Associates

HER HONOUR:  

1Jay Timothy Verwey, you have pleaded guilty to one count of importing a commercial quantity of the border controlled drug cocaine contrary to s.307.11 of the Criminal Code(Cth) on 23 February 2017. 

2The details of your offending are contained in the prosecution opening filed in these proceedings, Exhibit A.  A commercial quantity of cocaine is 2 kilograms.  The maximum penalty for this offence is life imprisonment and/or a fine of 7500 penalty units or $1.35m. 

3As to the nature and circumstances of the offence, you left Melbourne on 12 February 2017 with Tai Doyle and flew to Rome via Abu Dhabi and arrived back in Australia on 23 February 2017, via the same route. 

4Upon arrival, you collected your baggage and passed through Immigration.  You were then approached by an Australian Border Force ABF officer who you told you were returning from Italy after a ten day holiday with Tai Doyle. 

5Your suitcase was then examined and after the contents were removed, it was still unusually heavy.  The lining of the suitcase was unzipped, and revealed a piece of plywood covering the entire base of the suitcase.  The plywood was removed which revealed three distinct packages covered in brown tape. 

6An incision into one of the packages revealed that it contained a white powder, presumptive testing of which indicated the presence of cocaine. 

7ABF contacted the Australian Federal Police.  You were cautioned and interviewed.  In the course of the interview you denied any knowledge of the material concealed in your suitcase.  You told police that Tai Doyle, a friend for over 14 years, had asked you to travel with him to Italy for a wedding and that Tai had paid for the flights and accommodation. 

8Subsequent examination of your mobile phone revealed incriminating messages had been sent between you and Doyle in the week leading up to your departure to Italy. 

9Those messages reveal that you were enlisted by Doyle to become involved; that you thought that you would be bringing back money from Rome and that you, yourself, would receive some financial benefit. 

10By the time you came back to Australia, however, you intended and were reckless as to what you had in your luggage was a border controlled drug.

11Forensic examination of the powder revealed the gross weight of the powder was 4.91.05 grams.  Forensic analysis revealed the powder contained cocaine with purity of 82.5 per cent, thus the pure weight of the cocaine was 4051.1 grams, double the amount of commercial quantity, two kilograms. 

12The potential wholesale value of the cocaine seizure was estimated between $882,000 and $1.176m.  Potential street value of the seizure is estimated as between $2,698,290.00 and $4,047,435.00.

13Your plea was accepted on the basis you intended to bring into the country a border controlled substance, but that you were reckless or didn't know that the substance that you were bringing in was cocaine.

14It was conceded that this stage of mind did not mitigate your offending, rather than there did not exist the aggravating feature of actual knowledge by those who engage in similar conduct.

15As to your character antecedents, age, means and physical or mental condition.  I was provided with a report from Dr Aaron Cunningham, forensic psychologist, dated 10 July 2018, and also a bundle of references from your family and your pastor.  I take all of that material into account.

16You are currently aged 34.  You have recently re-established a good relationship with your mother and step-father and sisters, all of whom were in court to support you. 

17From about the age of 14 you experienced problems at school and at home.  Many of your issues at this time stem from the environment in which you were living with your family, and also your own ADHD issues.  You were initially placed in foster care on an interim basis when you were aged 12, though you continued having periods of living at home.  You attended various schools but behavioural difficulties continued to the extent that you didn't complete your schooling. 

18You managed to find work when you were almost 15 years and lived a transient lifestyle living on the streets and other placements.  Ultimately, you lived with Jenny Smith and her family in the Frankston area and then later linked in with a housing agency, Ways, and found accommodation. 

19In this environment with money from work and independent accommodation, you became more involved in drug use.  Within a short time you were addicted to heroin.  You realised the gravity of your situation and re-contacted your mother and stepfather and successfully participated in a ten-day detox program at Windana.  When this was completed you lived with your family.  However, you reverted to cannabis use and then lived again with Ms Smith and her family.

20You have managed to remain consistently employed throughout most of your life, with different short-term jobs.  The nature of the work you are undertaking was subject to limited contracts.  The number and variations in your position is not reflective of your capacity to work.

21Your longest period of maintained employment was three to four years.  Your counsel submitted that any periods of unemployment that you have experienced should be viewed in the context of your poor mental health and housing issues.  I was informed that you are motivated to work with your pastor when released. 

22You have two children from two different relationships.  In about 2014, you began a relationship with Brittany that produced one daughter Keisha, now aged two.  That relationship broke down but has since recommenced. 

23You also had a relationship with Natasha and have another child with her.  During 2016 and in the context of a volatile relationship with Natasha, your ice use increased.  It was at this time that your mental health deteriorated and there were two suicide attempts by you.

24Your partner also had significant mental health issues and in mid-2016 that relationship broke down at a time when she was pregnant.  You do not know of her or your child's whereabouts.

25Your counsel indicated that in about December 2016, you determined to get your life back on track.  You resumed living with Jenny Smith in February 2017 and had enrolled in a professional health development course at Victoria University.

26You had been abstinent from drugs for about two months.  It was submitted that you had taken some steps to obtain stability in your life, but that relapsed when you became involved with this offending. 

27Psychometric testing by Dr Cunningham indicated cognitive functioning in the average range.  There was no indication of intellectual disability. 

28You have a limited prior criminal history.  Of relevance is a possession of methyl amphetamine charge dealt with in 2014 for which you received a no conviction bond.  Your other matters date back to more than 15 years ago.

29Dr Cunningham is of the opinion you present with a borderline personality disorder.  This stems from the sense of abandonment and neglect in your childhood home where you had no stability, emotional connection or support. 

30Dr Cunningham notes this impaired your personality development leading to an unstable sense of self and impaired ability to regulate emotional states.  In the context of these symptoms, you presented with a long history of drug abuse and have struggled to find stability in the community.  You have a limited ability to cope with stress and change and you relapse into drug abuse to cope.  You have not engaged with suitable treatment for your condition, and later Dr Cunningham expresses the opinion that your offence behaviour occurred in the context of poor judgment and negative peer associations.  Your counsel did not submit that any of the limbs in Verdins were enlivened in relation to your offending or current circumstance. 

31The degree to which you have shown contrition and the fact of your plea of guilty.  A committal hearing where two witnesses were called, was held on 5 December 2017.  After negotiations between the parties you were arraigned and entered a plea of guilty on 9 March 2018 to this offence well before the scheduled trial date.

32It could not be said that you pleaded at the first opportunity.  I do, however, accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit and I take that into account. 

33Your plea of guilty is also indicative of genuine remorse and contrition.  This is consistent with the remarks in the various character references, the report of Dr Cunningham tendered on your behalf and your conduct since you've been at Marngoneet in custody. 

34As to your rehabilitation prospects, your counsel submitted, and the prosecution conceded your rehabilitation prospects were good.  The following features auger well for your rehabilitation: (1) The significant support of your family and pastor.  I was informed that you are now committed to Brittany and Keisha, both of whom have been visiting you in custody, as have your foster parents, biological family and the pastor from your local church; (2) Good employment history.  You have indicated a desire to work with your pastor, who you have known for many years, to assist others with drug and alcohol issues.  Although it was conceded you continued drug use whilst at Port Phillip, your conduct whilst incarcerated at Marngoneet since July 2017 has been positive.  You have completed a number of courses and I was provided with relevant certificates.  See Exhibit 3. 

35You have been appointed to the peer team which involves assisting other prisoners and liaising with prison authorities.  It is a position of significant responsibility. 

36You have provided a number of clean drug screens.  You have a limited prior criminal history.  Clearly, your successful rehabilitation will involve you engaging in supports and remaining drug-free.  I accept your attitude and involvement whilst in custody is, if it remains, consistent with good rehabilitation prospects. 

37As to general and specific deterrence and just punishment.  Importation of a commercial quantity is a very serious offence.  General deterrence has an important role to play to discourage others who, like you, are persuaded to become involved in this kind of criminal activity for financial reward, whatever role is to be played, and people should understand that they will be punished.

38Ordinarily, importation of drugs in this amount would warrant a substantial term of imprisonment.  Any potential financial benefit should be neutralised by the risk of severe punishment for involvement in importation of cocaine and that message should be clear.

39The difficulties in detecting this kind of offending and the social consequences that follow, point to both specific and general deterrence as important sentencing considerations.

40The prosecution refer to a number of authorities or comparable cases for sentences imposed for offending of this nature.  Although they provide some guidance, the individual circumstances and level of involvement and other circumstances surrounding the commission of this kind of offence varies from case to case.

41I have considered the recent Court of Appeal decision of DPP (Cth) v Masange and Anor [2017] VSCA 204, and the analysis by Beale JA particularly at paragraph 139, and the relevant matters to consider in sentencing for this kind of offending.

42The seriousness of this offending is reflected in the maximum penalty for importation of a commercial quantity of cocaine.  You played an essential role in the importation and although you could be described as a dupe, the text messages reveal that you did not take much persuading to be involved.  It was accepted by the prosecution that you were a courier and that was the role that you played. 

43The total amount imported was just over double the commercial quantity and you expected a financial reward and received a trip to Italy for your involvement in this offending.

44In determining the sentence to be passed or the order to be made, a court must impose a sentence or make an order that is of the severity appropriate in all the circumstances of the offence. 

45It was not submitted by either counsel that a sentence involving a non-parole period was not the appropriate course for me to adopt.  The prosecution submitted the only appropriate sentence open to me was a term of imprisonment and that the duration necessitated the fixing of a non-parole period.  See s.19(A)(c) and (A)(b) of the Code. 

46Your counsel did not take issue with that submission, however highlighted your good rehabilitation prospects in determining your non-parole period. 

47Taking all relevant sentencing considerations into account I propose to sentence you as follows; if you could please stand. 

48In relation to Charge 1, importation of an amount not less than a commercial quantity of cocaine, I sentence you to a term of imprisonment of seven years with a minimum term of three years. 

49Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter, I would have sentenced you to a period of imprisonment of nine years with a non-parole period of five years.  What is the pre-sentence detention please?

50MR DARBY:  517 days.

51HER HONOUR:  I declare pre-sentence detention of 517 days.  Are there any other orders I need to make?

52MR DARBY:  No, thank you.

53MR TERRY:  No, Your Honour.

54HER HONOUR:  Thank you.  Thanks I'll just stand down.

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