Director of Public Prosecutions v Vince
[2018] VCC 1808
•7 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-18-00624
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JAY ROBERT VINCE |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 5 and 18 October 2018; 7 November 2018 | |
DATE OF SENTENCE: | 7 November 2018 | |
CASE MAY BE CITED AS: | DPP v Vince | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1808 | |
REASONS FOR SENTENCE
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Subject: Sentencing
Catchwords: Pleas of guilty; importing and possession in marketable quantities border controlled drugs; possessing drugs of dependence; drugs ordered online from overseas and received by post; no disguising identity; importance of general deterrence.
Legislation cited: Crimes Act 1914 (Cth) ss. 16A(1)&(2), 17A; Sentencing Act 1991 (Vic) s. 6AAA.
Cases cited:Hili v The Queen; Jones v The Queen [2010] HCA 45; The Queen v Pham [2015] HCA 39; R v Nguyen; R v Pham [2010] NSWCCA 238; Nguyen v the Queen; Phommalysack v the Queen [2011] VSCA 32; DPP v Thomas; DPP v Wu [2016] VSCA 237; Harris v R [2014] VSCA 30; Storey’s case [1998] 1 VR 359; Matthews & Ors v R [2014] VSCA 291 at [75]; DPP v Gull [2003] VSCA 123.
Sentence:Cth: 30 months imprisonment, recognizance release after 16 months.
Vic: CCO for 15 months commencing 6 February 2019.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms N. Kohn | Commonwealth Office of Public Prosecutions |
| For the Accused | Ms S. Poulter | Stary Norton Halphen |
HER HONOUR:
1 All right Mr Vince I have a lot to explain about your sentence, so you can remain seated while I do that. I will tell you when I require you to stand.
2 Jay Robert Vince, you have pleaded guilty to seven charges. The first four are Commonwealth offences brought against you by the Commonwealth Director of Public Prosecutions. Those are: importing amphetamine in a marketable quantity, importing MDMA in a marketable quantity, possessing amphetamines suspected of being unlawfully imported, and possessing MDMA suspected of being unlawfully imported in a marketable quantity. MDMA and amphetamines are border controlled drugs.
3 The other three offences are state offences, and the charges are brought by the Victorian Director of Public Prosecutions. Those are: possession of cannabis, possession of psilocin (or magic mushrooms), and possession of LSD, each being a drug of dependence.
4 The maximum penalty for each of the Commonwealth charges is 25 years’ imprisonment; and for each of the state charges, the maximum is 5 years’ imprisonment. These maximum penalties, particularly those for the Commonwealth offences, indicate how relatively seriously offences of this nature are regarded, and I must take them into account in relation to the objective seriousness of each offence.
5 You have also admitted a prior criminal history to which I shall refer later.
6 Because there are specific sentencing principles which must be applied to Commonwealth charges as distinct from State charges, I shall start with the factual background which is common to them all.
7 This offending all occurred between mid-August and 6 October last year.
8 Charge 1 arises from seven postal consignments addressed to you at your home address in Geelong, that were intercepted by Australian authorities between 13 August and 7 September 2017. Each was from the Netherlands, but had no sender details. Presumptive testing revealed a positive result for amphetamine - a border controlled drug. Further testing established that in total, the seven consignments contained 165.4 grams of pure amphetamine, some in white powder and some in white paste. The marketable quantity of amphetamine is 2 grams, and a commercial quantity of amphetamine is .75 kilograms. Therefore, the total amount of amphetamine you imported over those seven consignments was more than 80 times the marketable quantity, and approximately 22 per cent of the commercial quantity for amphetamine.
9 Charge 2 is based on the content of two consignments intercepted by Australian authorities, one on 4 September and the second on 7 September 2017, addressed to you at your home address. Again they arrived from the Netherlands. Presumptive testing was positive for MDMA, and on further testing it was established that there was a total of 158.1 grams of pure MDMA between those two consignments. The marketable quantity for MDMA is 5 grams. The commercial quantity of that drug is .5 kilograms. So the amount you imported between the two parcels was 316 times the marketable quantity, and 31.6 per cent of the threshold for a commercial quantity of that drug.
10 A search warrant was executed at your home address on 6 October 2017, and the rest of the charges arises from what was found in that search.
11 There was a box labelled "The Capsule Machine", and a jar containing white powder - both found on testing to contain amphetamines - in total 13.8 grams of pure amphetamine. These are the subject of Charge 3 of possession of a substance reasonably suspected of having been unlawfully imported.
12
There was a jar containing white powder and brown powder which on testing was found to contain a total of 78.2 grams of pure MDMA - the subject of
Charge 4.
13 There was a large jar containing a quantity of green vegetable matter, found to be 300 grams of cannabis, the subject of Charge 5 of possession of a drug of dependence.
14 A large jar containing mushrooms and a satchel carry bag containing drug items in a white sealed air envelope with Netherland stamps, were found to contain a total of 65.6 grams of Psilocin, known as “magic mushrooms” - the subject of Charge 6.
15 There was also less than what's defined as a small amount of Lysergic acid, known as LSD - being the subject of Charge 7.
16
Amongst items found were also two laptops, a mobile phone, various heat sealed bags, various small clip seal bags and express post envelopes,
pre-labelled, a box containing glassware and a powder substance, a silver container with two clear resealable bags with a brown substance, a glass jar containing a brown paste substance, a set of digital scales, and a Toll delivery docket for you. Your fingerprints were found on these items.
17 The amount of amphetamine found in your home was a little under seven times the marketable quantity, a very small fraction of a commercial quantity of that drug. The amount of MDMA found in your home was more than 150 times the marketable quantity for that drug, and about 15 per cent of a commercial quantity.
18 Under Victorian legislation, the trafficable quantity of cannabis is 250 grams, and the commercial quantity is 25 kilograms (by weight). The 300 grams, the subject of Charge 5, was therefore a little over the amount for a trafficable quantity, and 12 per cent of a commercial quantity.
19 What has been clarified this morning is that the LSD found was less than what is defined as a small quantity of that drug.
20 You were arrested on 6 October 2017 and interviewed by police. You predominantly answered “no comment” as was your legal right, but did admit that the items located in the entertainment room in the house all belonged to you.
21 You indicated pleas of guilty to these charges at the third committal mention hearing, which was in March of this year. There were no witnesses called and the matter proceeded by way of a straight hand-up brief.
22 You have been in custody since your arrest on 6 October last year, which time will count towards your sentence, and that has been clarified as 397 days up to but not including today. That is effectively 13 months.
23
I turn now to your personal circumstances. You are now aged 24 and were
23 at the time of this offending. You were born in Queensland and moved with your family to Victoria at a young age.
24 Although your parents separated when you were aged six, you were raised by your mother with your two sisters in a stable home, which was joined when you were aged about eight, by your step-father. You continued to have contact with your father until the last few years.
25 Your step-father has helped raise you, was amongst several family members, and is again today in court to support you. He has provided a reference which provides details about your family and your own history.
26 Your step-father says that you were part of an accelerated learning stream in both primary and secondary school, and that in your mid-teens you were also successful in sports, especially playing hockey, but that you withdrew from sport and also at around age 17, dropped out of school. This was after Year 11, and your step-father understood it was as a result of problems you were having with your peers.
27 Your step-father believes that you are highly intelligent but also naïve and prone to obsessive thoughts. He says that at the time of your offending you had developed a notion that the world would come to an end, and you were using bitcoin as a more reliable currency given the impending end of the world. The use of bitcoin was not ultimately in the facts of the prosecution summary opening and nor was it raised by your counsel, so I have not turned my attention to that as any relevant part of your conduct.
28 As to whether you had notions of imminent world destruction and were stockpiling drugs for that purpose, your counsel mentioned that, but it doesn't appear from Mr Cummins report that you mentioned that to him, so there is no analysis by him in psychological terms of what that might reflect.
29 You apparently come from a family where there is considerable history of mental illness. Your father apparently suffered mental illness from childhood and has continued to do so. Your step-father says that you and both your sisters showed symptoms of mental illness throughout your lives, and I infer that your mother also suffers some mental health problems.
30 According to your step-father, at about age 12 you were showing symptoms of mental illness and were taken for counselling, but he and your mother struggled to manage your mental illness. You told Mr Cummins that it was at about age 16 that, due to breakdown in your relationship with your mother and when you moved out of home, you were referred to a psychologist or a psychiatrist, but that you declined prescribed medication for anxiety or depression at that stage, and have been averse to medication until your current stay in custody. It is only since being in custody that you have been prescribed and been taking anti-depressant medication, which you have found has been of benefit in improving your mood.
31 At about age 15 or 16, you left home with one of your sisters, to live with your father. This was due to tension with your mother, however after two months of living with your father, you moved to live with your girlfriend and her mother. Apparently your girlfriend also struggled with depression and dropped out of school at about the same time as you.
32 I am told that after leaving school you started a carpentry pre-apprenticeship, but rather than pursuing an apprenticeship you wanted to start full time work. You have in the intervening years worked as a machine operator in a factory for a year, then at a warehouse for about 12 months, then at another warehouse where you operated a forklift. You apparently became disillusioned with each of these jobs, and did not work for about a year after that, then started at a retail store where you worked as a storeman for about three years until being remanded in custody last October.
33 Your employer there confirmed your employment at that Warun Ponds store, where you were regarded as a reliable and hardworking employee, well regarded by other staff. He was aware of these charges both at the time when you applied for bail earlier this year, and more recently. He confirmed that employment at that store would be available to you again on your release from custody.
34 You have been in a relationship with your partner for about 10 years - that is, since becoming boy and girlfriend at about age 14 while you were both still at school. At the time of this offending you were living with her in the home of her mother. I am told that she has never used illicit drugs, but she has had prescribed medication at times for a psychiatric condition, although more recently I gather she is not taking medication but using diet as a way of controlling her mental health problems.
35 Her mother, Ms Hanson, gave evidence before me having known you since you became her daughter’s boyfriend in mid-teenage, and then having agreed for you to move in with them at about age 16 due to your family circumstances. She spoke of you as being a quiet, not very social and a bit introverted young person, and lacking confidence. She regarded you as having high intellect and also being artistic with a desire to enter some field of design. She felt that due to family circumstances you had not fulfilled your potential at school.
36 She described her relationship with you over the years as solid, and that you had not been a problem, with very few arguments and not being loud or aggressive. She had not noticed any sudden change in your manner, but over time felt you had become more quiet, staying inside more. She was clearly disapproving of your drug use. She was aware that you had used cannabis as she had seen a bong in your room and had smelt it on one or more occasions, but had not noticed signs of any other drugs, and had not noticed any significant impact on you of drugs. She was shocked and dismayed when the police raided her house and found what they did.
37 She remains, with her daughter, willing to support you, and they have been visiting you regularly at Ravenhall. She has had conversations with you over the last 12 months, including that your conduct was not only wrong but stupid. She says they were difficult conversations but she believes you are sorry for what you did, and what you put those close to you through. You have told her that you have no intention of offending again, and you have plans for your life to move on. She has discussed with you the need to have a meaningful role in society, for which it is important to push yourself to do things which you are good at - all within the law.
38 It has not been discussed where you will live on your release from prison. Your partner, her daughter, has been visiting you in prison and has been in court to support you, but the future of your relationship with her is not clear.
39 You say that you started using cannabis at about age 17, and by age 18 were a daily user and continued to smoke it daily until arrested. You did not think it affected your work but could not wait to get home to use it. You noticed your girlfriend complain that you were ignoring her, and that the cannabis was more important to you than her.
40 You say you started experimenting with MDMA, LSD and mushrooms from about age 19, but it was mainly the MDMA that you used and became addicted to. You say you thought it controlled your anxiety when you first used it, but that by the time you were arrested, it caused you to feel more anxious. You also snorted amphetamines and were definitely addicted to those. That is, amphetamines but not Ice. You had never before this offending undergone a formal drug rehabilitation program.
41
You say that you have not used any
non-prescribed drugs in prison. You have also used your time there to undertake some programs and courses, including two for understanding the effect of cannabis and other drug use on you; managing worry, everyday life stress, relationship skills, healthy coping and thinking, and you've also done an occupational workplace safety unit. I accept from the evidence of these that you have been using your time in custody constructively while on remand, consistent with the resolve you have expressed to those close to you that you intend to stay free of illicit drugs, and have plans for a constructive future life. My impression is that you are intelligent enough to realise that that is the course you should follow, and to be able to achieve it if you stay free of illicit drugs.
42 You were assessed for this hearing by Mr Geoffrey Cummins, consultant psychologist, in May of this year. That interview was by video link. Mr Cummins sets out in his report your history as you told him, some of which I have already built into this summary and which I shall not repeat further in detail. He understood from you that leading up to your offending, you were addicted to cannabis, MDMA and amphetamines, but were coping with work at a retail store. You told him that the reason you had engaged in this offending was that drugs were so expensive to buy in Australia, and you found out that you could import some more cheaply, and then you imported bigger amounts to last you longer. As I say, you don't appear to have told him that you were stockpiling for any particular purpose.
43 His opinion was that although you spoke openly and candidly to him about your offending, you had limited insight into how illicit drug use had impacted your life, or the seriousness of your offending. You told him that you have decided to never resume using illicit drugs, and were optimistic that you would remain drug free long term. You gave him the impression that you thought this would be easier to achieve than he believes is experienced by most people who have been drug addicted to the extent that you have been.
44 Mr Cummins did not carry out any formal testing of your intellectual capacity. You told him you regarded yourself as of average intellect and he agreed but he later expressed this as of low average intelligence. It is not clear to me whether he had any information about you having been placed in accelerated learning classes at school. I can't make any further assessment of your actual intellectual capacity, but I proceed on the basis that you are of at least average intelligence.
45 Mr Cummins found no evidence of any acquired brain injury. He found no sign of any trauma related disorder, nor any personality disorder, nor any psychotic condition. He thought you were mildly anxious and moderately depressed, even though currently taking antidepressant medication. As far as he could ascertain, at the time of the offending you were not suffering from any diagnosable mental health disorder, apart from drug dependency.
46 He believed your dependency on drugs had likely clouded your perception, judgment and reasoning at the time of the offending.
47 His opinion was that the symptoms of depression you reported were primarily related to the fact that you are currently incarcerated, and they were not of such a magnitude to warrant the diagnosis of a mental health disorder independent of symptoms of depression and anxiety which were solely reactive to your current circumstances - that was, being in prison.
48 He considered that whether you would engage in further offending was very much linked to whether you resume illicit drug use when released, and, to whether you benefit from any mental health treatment or counselling relevant to your drug use. That comment seems to have assumed ongoing mental health treatment, although he considered your symptoms resulted only from your incarceration. In any event it is to be hoped that if you feel you continue to need the prescribed antidepressant, you seek medical attention for that on release from prison, and do not attempt to self-medicate with any illicit drugs.
49
I turn now to the Commonwealth Sentencing principles that I must apply in determining your sentence. These are primarily contained in sub-s.16A(1)(2) of the Commonwealth Crimes Act. I will not repeat section numbers and
sub-section numbers or case names in my reasons but will footnote them into the revised reasons for sentence.
50 Having said that, I do state that under s.16A(1) in determining the sentence the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. The court must not pass a sentence of imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. And I must take into account a number of matters, if relevant in the particular case, and I now turn to those which are relevant to your case, some of which have already been raised as I have discussed the factual background circumstances.
51 First I must take into account the nature and circumstances of the offence[1]. This includes assessing the level of criminality of your role in this offending. I have had regard to principles distilled in several cases in relation to federal drug offences[2].
[1] s. 16A(2)(a).
[2] R v Nguyen; R v Pham [2010] NSWCCA 238; Nguyen v the Queen; Phommalysack v the Queen [2011] VSCA 32; DPP v Thomas; DPP v Wu [2016] VSCA 237.
52 These principles include that the quantity of the illegal drug involved is highly relevant in determining the objective seriousness of the offence, and is often the main factor available to assess comparative seriousness of the criminality.
53 As a rolled-up charge, the first charge here involved seven consignments over a period of a little over three weeks, and all arranged apparently solely by you. The total weight of amphetamine was well into the marketable quantity range but very much below a commercial quantity[3]. There was no attempt to disguise your identity as recipient. I take this to be a reflection of your naivety and lack of insight into the seriousness of the nature of the offending - that is, of importing a border controlled drug - it shows no sophisticated plan to conceal your involvement.
[3] See Harris v R [2014] VSCA 30.
54 Under Charge 2 there were only two packages but the total weight was more than 300 times the threshold for a marketable quantity and some 31 per cent of a commercial quantity. The two consignments arrived only three days apart. Because of the higher quantity, although from fewer consignments, I regard the level of criminality as between Charges 1 and 2 as very similar.
55 Charges 3 and 4 are each for a lower quantity of the respective drugs, and are for possession of those drugs although each being suspected of having been imported. I regard both of them as less serious than Charges 1 and 2, but by no means insignificant, as they reflect that the importations under Charges 1 and 2 were not your first attempt to import such drugs. The amount of amphetamine found in your possession in that manner was significantly less than the quantity imported in the seven packages, and also significantly less than the amount of MDMA found in your possession.
56 Another important element of the degree of criminality is the purpose of the importations and possession. It is usually to be assumed that there is a commercial purpose or at least financial gain. In this case you claim that the drugs were all intended for your personal use. The prosecution disputes that they were intended solely for your own use. To find that you intended to on-sell or otherwise traffic them, and treat that as an aggravating feature, I would need to be satisfied of that beyond reasonable doubt[4]. To find that they were solely for personal use I would need to be satisfied of that on the balance of probabilities, if I were to treat it as lowering your culpability[5].
[4]Storey’s case [1998] 1 VR 359.
[5]Storey’s case.
57 The presence of various small clip bags and scales are indicative of trafficking of drugs, but there is in my view insufficient evidence for me to make that finding on the necessary standard of proof. On the other hand I regard the quantities in weight and numbers of consignments together with the presence of the scales and zip lock bags within bigger jars or other containers, as making unlikely that the drugs were all intended solely for your own use.
58
I therefore proceed on the basis that your motivation was not primarily to
on-sell for profit, but nor was it to acquire those drugs solely for personal use. I accept that you were heavily addicted to amphetamine and MDMA, and that a considerable amount was for your personal use. That makes you less culpable, meaning less blame worthy, than had the primary intention been to on-sell most of the drugs for profit. However, even having it for personal use, still involved a financial motivation in that you wanted to save money because you had learnt that it was cheaper to import than purchase such illegal drugs in Australia. Your own addiction gives context to this motivation to import these drugs, but it cannot be regarded as an excuse and it is not in itself mitigatory.
59 Your offending also formed a course of conduct, a matter I must take into account. The fact that the first two charges represent a total of nine separate transactions of importation and arrangements for those packages to be delivered to you containing the illegal drugs, and that you were between them importing two different types of illegal drugs, increases the seriousness of the overall offending, and this also shows that it was not one brief lapse in judgment, or impulsive act that led you into this offending. That they were found together with three other types of drugs (although those not the subject of Commonwealth charges) is also relevant as reflecting the extent of your willingness to acquire and possess various types of illegal drugs.
60 The offending being part of a course of conduct also has relevance as invoking to a considerable degree, the sentencing principle of totality. I have, as a result, applied only modest cumulation between the first two charges, to reflect that they arose out of the same motivation and the same course of conduct as did the third and fourth charges.
61 I was provided with information that had all of these drugs been sold at street prices, the value would have ranged from about $177,000 to about $307,000. That information I regard as of limited use in deciding the level of criminality in this case, as I have no information as to the cost to you of acquiring the drugs, so could not assess any level of profit. And more importantly, I have not been able to assess how much was for your own use, and what the savings to you would have been compared with buying that amount at street prices.
62 I do not overlook that drugs of this nature, in this quantity have significant value if sold on the street, do significant harm in our community, and therefore it is relevant to take those factors into account in the weight given to the sentencing purposes of denunciation of such conduct, and to deter others from the temptation to import or sell such drugs.
63 The fact that you have pleaded guilty to these charges entitles you to some leniency in your sentence in several respects[6]. Although not at the first opportunity, you pleaded guilty at a relatively early stage without the need for witnesses to be called at a committal hearing, and well before a potential trial. I can and do take into account that that provides what is called “utilitarian value”, that is of saving the time and cost to the community of disputed hearings[7]. I accept that by this approach you were willing to facilitate the course of justice, although you did not initially cooperate by making full admissions to police. You did immediately make sufficient admission to avoid anyone else in the household being potentially implicated in relation to the presence of the drug paraphernalia. By your pleas of guilty, you have also accepted responsibility for your offending and acknowledged your wrong-doing.
[6] s. 16A(2)(g).
[7]DPP v Thomas; DPP v Wu [2016] VSCA 237.
64 As to whether you have shown contrition or remorse[8], you seemed to Mr Cummins to lack much insight into the seriousness of the offending. I accept that you regret the situation that has resulted in you spending the last 13 months in prison, and that you regret the upset this has caused to your family and your partner and her mother. That is not the same as fully appreciating how wrong your conduct was. But I also take into account, that you seem to have used your time towards rehabilitative thoughts and courses, and that can also be taken into account as reflecting remorse, as well as resolve not to repeat such offending.
[8] s. 16A(2)(f).
65 General deterrence[9] must be the most important sentencing purpose in this case. That is the deterrent effect that any sentence I impose should have, on any other persons tempted to engage in such offending. General deterrence is almost always the most important sentencing purpose for charges of importing border controlled drugs or other significant drug offences. As has been said in the Court of Appeal[10] about offending which involved the ordering of illicit drugs online, the sentence was required to give full effect to the need to deter others, and to denounce that conduct.
"If there be a perception amongst some that the online trading of drugs or their purchase or sale by post is somehow less serious than more traditional forms of dealing, those perceptions need to be dispelled by sentences which adequately reflect the need for general deterrence."
[9] s. 16A(2)(ja).
[10]Matthews & Ors v R [2014] VSCA 291 at [75].
66 You have a modest prior criminal record without any conviction being recorded, but the prior offending is relevant. In 2013 you were placed on a good behaviour bond by Geelong Magistrates' Court for cultivating a narcotic plant and possession of cannabis. You complied with that bond and the charges were dismissed on its completion. That reflects your personal use of cannabis at the time, and apparently did not deter you from continuing to possess and use cannabis, although there is no indication that you again cultivated any such plant for yourself. However, the sentence imposed reflects that the overall offending and what was your first offending, was not regarded as of great seriousness.
67 In April 2017 you were fined without a conviction being recorded on one charge of trafficking and one of possessing MDMA. That sentence reflects that the Magistrates' Court accepted that the trafficking was of relatively low seriousness. I infer that because no conviction was recorded. As described to me, that offending was not to make money but was committed by you providing that drug to friends who were with you at a concert. Again it seems that the court appearance did not deter you from continuing to acquire that illegal drug -that is MDMA.
68 At age 24 you are still young enough for rehabilitation to be a significant consideration in your sentence, although not the primary purpose. Although in cases of serious drug offending, general deterrence will usually outweigh rehabilitation in importance even for relatively young offenders, courts have long recognised that rehabilitation of a youthful offender is ultimately in the best interests of not only that person and their family but also of the community generally. It is in the community’s best interests that you be assisted to stay clear of any further drug use or drug offending, and to build a responsible life for yourself as a contributing member of the community.
69 Although you may be underestimating the challenge for you to stay well away from any illegal drugs on your release from prison, especially given the period over which you were apparently heavily addicted to three different illegal drugs, you have in your favour the support of family and of your partner and her mother, none of whom have any association with illegal drugs or offending.
70 You have a proven work record and the offer of return to your previous employment. And, if you engage with appropriate drug programs or counselling to reinforce your ability to resist resuming your past drug use, your prospects of establishing a law abiding and responsible life for yourself, I assess as reasonably good[11]. They are however heavily dependent on you staying abstinent from use of illicit drugs
[11] s. 16A(2)(n).
71 Finally I note that in cases of this nature it is important that sentencing courts have an eye to comparable cases because equal justice requires identity of outcome, whereas where there are relevant dissimilar or different circumstances, different outcomes should be expected. Further it is important the courts throughout Australia look to sentences throughout Australia when sentencing in Commonwealth matters because, of course, the same principles and laws apply in each State of the Commonwealth[12].
[12]Hili v The Queen; Jones v The Queen [2010] HCA 45; The Queen v Pham [2015] HCA 39.
72 I was referred to a number of cases. One, Matthews, had involved the imposition of a sentence of 4 years imprisonment on a charge of importing a marketable quantity of a border controlled drug to which that offender had pleaded guilty. That charge covered the importation of 21 packages, 17 of which contained MDMA and others contained amphetamine and cocaine. They occurred over a nine month period, quantities varied in their purity but the total was slightly less weight of MDMA than you imported, and very much less in amphetamines. The total weight of that offender's importations, although they also included cocaine, were less than half of yours. However, as I say, the number of packages was very much more and over a much longer period. It was taken into account that there was a finding that some of the drugs so imported were to be for a trafficking purpose, as well as some for personal use, and there was also a separate charge of trafficking drugs. The offender, Mr Matthews, was older than you but had a family, a good work record, and suffered depression, and that reduced his moral culpability.
73 In the case of DPP v Gull[13], charges of trafficking were based on the offender's possession of drugs for that purpose. I note trafficking is not what you are charged with. The quantities were considerably lower than yours of MDMA, but his had included steroids. There were smaller amounts under state charges of amphetamine, cocaine and cannabis. He had engaged in residential rehabilitation before the matter came on for hearing, to address his drug addiction, and was considered to have excellent prospects of rehabilitation. He was sentenced to a total effective sentence of two years' imprisonment with a non-parole period of 12 months.
[13] [2003] VSCA 123.
74 I have had regard to the other sentences brought to my attention, and to some others with which I am familiar including some imposed in this court, although the higher courts are those that are drawn to my attention by the Commonwealth. All cases must be assessed on their own individual combination of circumstances, but I have borne in mind that comparable cases must be taken into account for consistency, and to reinforce an impression of fairness in sentencing throughout Australia.
75 As I have already said, I regard general deterrence as the most important sentencing purpose for these charges, together with denunciation and specific deterrence, that is because of your record of longstanding drug abuse. I have also given rehabilitation some weight, but not as great as general deterrence.
76 I am satisfied that the seriousness and extent of the Commonwealth offending, and purpose of general deterrence, mean that no other sentence than imprisonment is appropriate in all the circumstances of this case. Having decided that no sentence other than imprisonment is available, I direct under s.17A(2)(b) of the Crimes Act that these reasons for this decision be entered into the records of the court.
77 I am satisfied, however, that the length of the total sentences for these Commonwealth charges does not need to exceed three years. I have not disregarded the submissions of the Commonwealth that they should exceed three years, but in weighing up all the circumstances I have outlined I have decided that a sentence less than three years in total would meet appropriate sentencing requirements. Therefore, a recognizance release order will be made. I am going to require you to spend some further time in prison on those charges, but the balance of the sentence will be partially suspended under that recognizance release order.
78 I turn next to state sentencing principles, and Charges 5, 6 and 7.
79 First, I must assess the objective seriousness of the offending and the culpability of your role in it. I have outlined the factual circumstances of the offences and that the maximum penalty for each of these charges is five years' imprisonment.
80 The state charges cover your possession at your home on 6 October last year of quantities of cannabis, what are known as “magic mushrooms”, and LSD. You have told Mr Cummins that you had been addicted to and a daily user of cannabis for many years. The other two drugs you told him you had used much less frequently.
81 This was possession at a single point in time, and despite the presence of the scales and zip lock bags that were found in your possession, I am prepared for these charges to infer that these drugs were more probably than not in your possession for your own use, and not for supply to anyone else. That has some impact in confining your culpability and putting it into context.
82 The variety of drugs found (and of course they were found together with amphetamine and MDMA, although they are not the subject of state charges), reflects your extensive involvement with different illegal drugs, but as I have said, I find these were probably solely for your personal use.
83 As with the Commonwealth charges, your pleas of guilty to each of these charges entitle you to some leniency for utilitarian value, for reflecting acceptance of responsibility, and to a degree reflecting remorse. I shall tell you what the sentences would have been if you had not pleaded guilty after I have told you the ultimate sentences.
84 I have again - that is, for the state charges - taken into account your age and background family circumstances.
85 I am satisfied that despite your prior court appearances relating to illegal drugs, and you not having learnt from those experiences, your rehabilitation should still be a significant, although not the primary, sentencing purpose, and I regard your prospects of rehabilitation as reasonably good.
86 Based on Mr Cummins' opinions, there is no basis to reduce your sentence due to any mental health condition requiring moderation or reduction of your culpability for these offences, nor the application of general or specific deterrence, nor does his opinion indicate that your symptoms of depression and anxiety experienced as a result of your incarceration amount to a diagnosable mental health disorder. It seems that prescribed medication while in custody has alleviated those symptoms, although not entirely eradicated them. Therefore, I cannot find that any such condition is likely to be exacerbated by further time in prison, nor can I make a finding that your experience of incarceration will be more onerous from here on than for someone without those symptoms.
87 I have taken into account Mr Cummins' view that the symptoms of anxiety and depression you have displayed, and for which medication has been prescribed for you in custody, are likely to be a result of your experience of incarceration, but not that those are particularly different from those experienced by other persons who are incarcerated.
88 Issues of totality also have been discussed previously, and apply for the state charges as well. In relation to the three state charges, I am intending to impose an aggregate sentence as they were all in that static state found in your possession on the same day.
89 General and specific deterrence and just punishment as well as rehabilitation prospects are all relevant to sentencing of you on these charges, that is, the state charges. I have decided that a sentence less severe than imprisonment would adequately achieve those sentencing purposes in all the circumstances, and I have decided that a CCO can be imposed for them. As I have said, that will be as an aggregate. I will fix its starting date just short of three months from today. In practical terms, it will commence immediately after your release from the sentences of imprisonment that I am imposing on the Commonwealth charges. Would you stand up now, please.
90 Jay Robert Vince, on each of the charges, you are convicted and sentenced as follows.
91 On Charge 1, 27 months' imprisonment to commence today.
92 On Charge 2, 27 months' imprisonment to commence on 7 February 2019, that is the equivalent of making three months of it cumulative.
93 On Charge 3, I impose eight months' imprisonment to commence today.
94 On Charge 4, I impose 15 months' imprisonment to commence today.
95
That leads to a total effective sentence on Commonwealth charges of
30 months imprisonment or 2 years, six months.
96 I fix a period of 16 months after which you are to be released on recognizance to be of good behaviour, recognizance being in the sum of $1,500. You are to be of good behaviour for the balance of the total term.
97 I declare 397 days of pre-sentence detention reckoned served, and direct that that be entered in court records. In practical terms that is deducted from the head sentence and the period you have to serve before being released on recognizance.
98 I must explain that sentence to you. The total effective sentence, as I have said is 30 months or 2 years and six months imprisonment. I have ordered that you be released after serving 16 months. The time you have been on remand, effectively 13 months, will be administratively deducted. So you have in effect, just under three months further time in prison to serve.
99 For the balance of the 30 months, you will still be serving the sentence of imprisonment which I have imposed but I have ordered that you do that in the community, allowing you to go back to your normal life, to regain employment, re-establish yourself and your family relationships. Provided you are of good behaviour during that time, you will not have to serve any further time in prison, nor return before the court.
100 However, if you commit any indictable offences during that time by which I mean, any serious offences, I remind you that possessing, importing certainly, but possessing illicit drugs as well of course buying or trafficking in them are offences that would breach the undertaking. You would be in breach of your undertaking to be of good behaviour, so if that were to occur that could well lead to you being brought back before the court for reconsideration of your sentence. Do you understand that aspect? The recognizance release order?
101 OFFENDER: I do Your Honour.
102 HER HONOUR: All right. On the Charges 5, 6 and 7 which are the State charges, I impose an aggregate Community Corrections Order. That will commence on 6 February 2019, and it is to last for 15 months from then.
103 The conditions I impose are that you be subject to supervision, that you perform 60 hours of unpaid community work over the 15 months, and that you attend as directed by Community Corrections Officers for assessment and treatment for drug abuse - including if it is thought appropriate for drug screens.
104 In addition, all usual terms of a CCO apply. These are: that you report within two working days of the commencement of the CCO to the nearest Community Corrections office to where you will be living. I note that your address when you come out of prison is not yet determined. I propose to put in the CCO the Geelong Community Corrections office because I gather you will be in that vicinity. It can be transferred from there to a closer one when you know where you are living.
105 You are to report within two working days of the start of the CCO to that office. You are to advise CCO officers during the whole of the CCO of any change of address of where you are living or where you are working. And you are to advise that change within two working days of the change occurring. You are to obey all lawful directions of Community Corrections officers and submit to visits from them if required. You are not to leave the State of Victoria without the prior permission of Community Corrections officers. And above all you must not commit any offence that could be punished by imprisonment during the 15 months of the Community Corrections Order.
106 If you contravene that order, either by not complying with any of the terms or by further offending, that would amount to a contravention of the Community Corrections Order and that is itself a criminal offence which carries up to three months' imprisonment as a maximum sentence.
107 Further, depending on all the circumstances, you might be resentenced on the offences for which the CCO has been imposed. And in this case, I want to make clear that is for the three State charges of possession of respectively Cannabis, LSD and the magic mushrooms. Depending on your circumstances and on how much compliance there had been with a CCO before it was contravened, the court would have a discretion as to whether to cancel that order and re-sentence you for those charges. But it has other options available and as I say, that would all depend on the circumstances. But you could expect that a contravention might bring you back in front of the court, specifically in front of me.
108 Now do you understand the terms and conditions of the CCO?
109 OFFENDER: I do Your Honour.
110 HER HONOUR: Do you agree to comply?
111 OFFENDER: I do.
112 HER HONOUR: All right. Now I state for the purposes of s.6AAA of the Sentencing Act in relation to the state charges, that if you had not pleaded guilty but been found guilty of those charges after a trial, I would have imposed nine months’ imprisonment.
113 It is debatable as to whether I should state what the Commonwealth sentence would have been had you not pleaded guilty. I have decided to do so in this case because the state sentence would have been part of an overall total with the Commonwealth charges.
114 If you had not pleaded guilty but been found guilty after a trial of the equivalent of the four Commonwealth charges here, I would have imposed a total Commonwealth sentence of 4 years imprisonment, with a non-parole period of 2 years, 9 months, all of which would have commenced three months after the start of the state sentence. So the overall effect between state and federal sentences, would have been a total of 4 years and 3 months imprisonment with a non-parole period of 3 years. The 13 months of pre-sentence detention would have been deducted from that of course
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HER HONOUR::All right now you can take a seat while the orders are prepared and while I check with both counsel that there is no defect in the structure of the sentence. Is there a problem?
MS POULTER: Your Honour, sorry we're just having discussions and I must admit I'm not an expert in the Commonwealth structure of matters. But my understanding of what Your Honour said that effectively, the sentence on Charge 2 starts on 7 February to give effect to Your Honour's intention that three months be cumulative and all the others start today.
HER HONOUR: Yes, I can make it 6 February if the concern is the CCO.
MS POULTER: I'm not sure.
HER HONOUR: It's near enough to three months to have the same meaning, I can make it the 4th or the 5th of February if that makes it even clearer?
MS KOHN: I understand Your Honour's intention - - -
HER HONOUR: You'll have to step nearer to the microphone for this to be recorded.
MS KOHN: I understand Your Honour's intention, I just had some concern with 27 months commencing from 7 February 2019, that that would take us
beyond - - -
HER HONOUR: Three years? No. Three months plus 27 months equals
30 months, it's two and a half years in total, effective sentence.
MS KOHN: Yes Your Honour.
HER HONOUR: If it starts three months from today, if the sentence on
Charge 2, starts three months from today, that's three months plus 27 months. So it adds up to 30 months.
MS KOHN: Yes Your Honour.
HER HONOUR: What was the – so it's not over 3 years.
MS KOHN: And so, and the recognisance release order is to commence after the completion of Charge 2 is that?
HER HONOUR: No. How could it? The total sentence is 30 months; 13 months is declared reckoned served and exact amount of days but in effect 13 months. And I direct a recognisance release after serving 16 months, 13 months of which has been served, is declared reckoned served. But I'm prepared to alter the commencement date of Charge 2 by two days to make clear that it comes back within – that he's not being released before the commencement of the
Charge 2 sentence. Even though in the past – I've checked some of my past sentences and it's never been – the Commonwealth is always complicated on this, we know that. But I've gone to the trouble of checking and I've imposed sentences where a non-parole period commences before the commencement of the last of the Commonwealth charges.
MS POULTER: Yes.
HER HONOUR: There's a big problem when there is a state sentence of imprisonment that goes with it because a state non-parole period can't – parole won't be granted if all future commencing sentences have not yet commenced. So if there are any left that haven't yet commenced. But I'm not imposing imprisonment for the state charges here because what was said to be under a state charge and what was under a Commonwealth charge made the state charges considerably less serious, and indeed they carry a much lower maximum penalty. But the actual content of those charges was less serious for reasons I've tried to explain at some length. So there is a CCO for the state charges. It can't commence more than three months from today. So I've made it commence on 6 February. But if everybody is – if you're nervous that the cumulated sentence doesn't start until the day after that, I am prepared to alter Charge 2 to commence on 5 February. Which brings it a day before the commencement of the CCO. And on my reckoning the CCO can start that day even if the proper calculation of the release date on the recognisance release comes out a day before that. Does that solve the problem?
MS KOHN: I'm content for Your Honour to leave the order as is, if Your Honour has satisfied yourself - - -
HER HONOUR: Well when you say "As is" with or without that - - -
MS KOHN: With the commence date - - -
HER HONOUR: You don't want two days knocked off? Is that what you're telling me? You think it'll stand as technically correct if you - - -
MS KOHN: Yes Your Honour.
HER HONOUR: - - - glean that extra two days?
MS KOHN: Yes Your Honour.
HER HONOUR: What submissions do you have to make on that Ms Poulter?
MS POULTER: Your Honour - - -
HER HONOUR: Other that you want me to make it as low as possible.
MS POULTER: Yes Your Honour well all I can say Your Honour if there is potentially problems than the two days, backdating to 5 February - - -
HER HONOUR: I think what I'll do is back date it to 6 February not the 5th.
MS POULTER: Yes.
HER HONOUR: And that means that there shouldn't be an issue. The 6th so that it can't be said that the CCO starts more than three months from now.
MS POULTER: Yes.
HER HONOUR: And 6th also should coincide with your client – the 5th or 6th should be your client's release.
MS POULTER: Yes.
HER HONOUR: I think. But I can't prejudge whether there might be any administrative remissions taken into account.
MS POULTER: Yes.
HER HONOUR: Up to date or between now and then. All I know is that it's 397 days of pre-sentence detention.
MS POULTER: Yes.
HER HONOUR: All right I will change those please. And the order should be ready to be printed out. Ms Kohn, I have a different – have you got a form of recognisance release?
MS KOHN: Your Honour I hadn't had one prepared.
HER HONOUR: You haven't - - -
MS KOHN: I can have one brought up.
HER HONOUR: - - - because you submitted it shouldn't be made. I have a trial resuming now.
MS KOHN: Yes Your Honour.
HER HONOUR: And I have to have it signed before Mr Vince can be removed from the building.
MS KOHN: If Your Honour was inclined to stand down I can have someone from our office bring one over, a blank form that can be filled in?
HER HONOUR: Can't it be prepared in the terms that I've just announced?
MS KOHN: I just need a copy of that sent to our admin at our office to type that in.
HER HONOUR: It is that I direct that after 16 months, Mr Vince be released on a recognisance in the sum of $1,500 to be of good behaviour for the balance of the term of 2 years and 6 months or 30 months.
MS KOHN: Yes Your Honour I'll need someone in the office to fill that in. I don't have a computer here with me to do that.
HER HONOUR: What I'll do is see where my associate is at for the rest of the order and see if we can do one. Right now a CCO has been produced, I'll have my associate hand that to both counsel to check. And if it's in accord with what I've said, she'll take it to Mr Vince to read and sign and then I have to sign it in everyone's presence.
MS POULTER: I have no issue with that Your Honour. If Your Honour is happy I'll approach Mr Vince for - - -
HER HONOUR: Yes I'll have my associate go with you because she's got to see him sign it but you can go too if you like. Mr Vince this the copy of the Community Corrections Order, it's been checked on your behalf but you'd better read through it and sign if you agree to it. Do you have to leave court to get that copy of that recognisance order or have you sent off a message for it?
MS KOHN: I'll send off a message now.
HER HONOUR: Thank you. All right thank you. Right now I'm signing that CCO and it will be copied for you to keep. But you'll no doubt be provided with another one when you're about to be released from prison Mr Vince. And obviously there's a copy for both sides and one kept with the court. Now the signing of the recognisance release, I think it requires – yes it will require
Mr Vince to sign it. So I can't have him taken from the court building until that's happened. Even though I've signed off on the order that includes it. I have got another matter meant to be started by now and I've got the papers for that downstairs. So I've got to leave the Bench before that starts. Depends how quickly you can get it here Ms Kohn?
MS KOHN: I need the matter to be stood down so I can make that phone call. I've sent off a message, I haven't had a response.
HER HONOUR: What I think I'll have to do is stand the matter down until, I suppose I can make it 2 o'clock, it's going to eat into time one way or the other. But I don't want it too late before Mr Vince is removed from the court building. I don't want to make it 4 o'clock or close to that - - -
MS POULTER: No.
HER HONOUR: - - - He's been at Ravenhall but he's got to be taken back.
MS POULTER: I'd be opposed to keep him - - -
HER HONOUR: And possibly immediately assessed because he's now sentenced.
MS POULTER: Yes. Your Honour is 2.15 suitable for Your Honour, I'm just concerned about the timeframe we'll have to get this document for Your Honour.
HER HONOUR: Well - - -
MS POULTER: I can't say Your Honour I don't want to delay it - - -
HER HONOUR: I don't know how long it's going to take. Ms Kohn?
MS KOHN: If Your Honour allows me to make a phone call, if you stand for five minutes I can make a phone call?
HER HONOUR: No you haven't been listening to the extent of the problem.
MS KOHN: If I go back to the office it'll take me five minutes - - -
HER HONOUR: Will it be ready by 2 o'clock?
MS KOHN: Yes I can prepare it immediately.
HER HONOUR: All right, all right I'll stand this matter down until 2 o'clock. Mr Vince is not to be taken from the building in that time because he's required at 2 o'clock to sign the document that we'll have back by then. And then I'm only eating into my own and my staff's lunch hours and not the other case time. All right so this matter is to be back at 2 o'clock. Mr Vince to be brought back for then. Commonwealth to have sent to my associate a version of the order. And if it can't be marked up, at least send it well ahead of 2 o'clock so that I can spend lunch time typing it myself.
MS KOHN: As Your Honour pleases.
HER HONOUR: To the chambers inbox please. All right I'll leave the bench. Because family are present they can speak to, but have no physical contact with Mr Vince. No physical contact at all. And just for five minutes before he's taken back downstairs please. And he'll be back here at 2 o'clock. All right could we stand the court down for 10 minutes please, temporarily adjourned will do.
At 2 o’clock
HER HONOUR: All right my associate prepared a version and the prosecution sent through a version right at the same time, and we only got out of court at five past one from the other matter which is coming back shortly. So I've got a form of order– can we just have it printed off, thank you, good thank you.
I will sign that, this is the recognisance release order. And it sets out the reasons and the second page is the recognisance - - -
MS POULTER: The only thing I was going to raise Your Honour is, I'm not sure if it has to be done, but the "Forthwith" on the copy I saw, whether a line needs to be struck through on that?
HER HONOUR: "Forthwith" - - -
MS POULTER: "To be released after 16 months or forthwith" I think it's just got "Forthwith" there.
HER HONOUR: I haven't signed that version so - - -
MS POULTER: All right - - -
HER HONOUR: - - - I didn't pick that up. That's the version that the Commonwealth - - -
MS POULTER: I imagine Your Honour's probably - - -
HER HONOUR: - - - sent through. I can't see "Forthwith" but do you
want – there's a sort of pro forma that has that.
MS POULTER: Yes.
HER HONOUR: But that's what I was asking not to come through because we now know what the order is.
MS POULTER: All right.
HER HONOUR: Can this be handed to Ms Poulter to have a look and see. I hope it isn't here but - - -
MS POULTER: Does Your Honour mind if I put a blue pen through the bit, the word I was talking about?
HER HONOUR: That's fine because that's not the version we're using.
MS POULTER: Right - - -
HER HONOUR: Which paragraph's it in?
MS POULTER: It's para 4, so on the second page, paragraph 4 sub-s.(d).
HER HONOUR: I don't have that in mine.
MS POULTER: Yes, sorry Your Honour - - -
HER HONOUR: Hand it back and I'll just check, cross-check. Actually now I come to look at it, I think we might have to use the Commonwealth version. I'll initial that, it wasn't in my associates version but there's something else that needs changing so we'll come back to – yes I think the problem is, the Commonwealth version doesn't have sub-paragraph (b).
MS POULTER: Your Honour - - -
HER HONOUR: I'm really beyond – I think as long as it's correct as signed, even with handwritten amendments it should be all right. And today is
7 November 2018. Now this document then goes to – first to be checked by both counsel. And then it goes to Mr Vince to sign.
MS POULTER: Is Your Honour happy for me to approach Mr Vince? Sorry Your Honour - - -
HER HONOUR: Yes but my associate will go with you.
(Orders signed and acknowledged)
MS POULTER: Your Honour I'm advised the order doesn't have to have the pre-sentence detention on it.
HER HONOUR: Yes.
MS POULTER: And that's my understanding as well, I just thought I'd raise it with Your Honour.
HER HONOUR: No, sorry the main order does, the one I - - -
MS POULTER: Yes.
HER HONOUR: Yes. No this is simply the recognisance release order. And apparently that stays physically in court records, not just scanned in unlike nearly everything else that happens now. I will never know where to find anything in a years' time. All right, does Mr Vince have to have a copy of this to take away with him or is it sufficient that his lawyer have it? I think he has to have a copy.
MS POULTER: But the order does say that he has received a copy of the order.
HER HONOUR: Yes it does. All right can there be a copy of that given to each of the prosecution, the defence and one for Mr Vince. Are you going to see him downstairs?
MS POULTER: I am Your Honour.
HER HONOUR: Yes all right - - -
MS POULTER: Well Your Honour wouldn't mind if I could provide it to him here, there's more difficulties in me giving it to him downstairs.
HER HONOUR: You can provide it here yes. All right Mr Vince that's the recognizance order that you've just signed and I've signed. That means that you're to be released after 16 months of your total sentence. Which on my calculation is three months from yesterday. All right, can Mr Vince be removed from the court room please.
MS POULTER: Thank you Your Honour.
HER HONOUR: And I'll stand the court down, you're all excused and I'll let the multitudes for the next case come in thank you.
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