DPP v Matthews and Wilhelm [2021] VCC 1827 (19 February 2021)

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK MATTHEWS

and

DIRECTOR OF PUBLIC PROSECUTIONS

v

TORRYN WILHELM

JUDGE:	HIS HONOUR JUDGE C RYAN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	4 February 2021
DATE OF SENTENCE:	19 February 2021
CASE MAY BE CITED AS:	DPP v Matthews; DPP v Wilhelm
MEDIUM NEUTRAL CITATION:	[2021] VCC 1827

Catchwords: trafficking in drugs of dependence in not less than a commercial quantity - nine charges of trafficking in a drug of dependence – general deterrence – role - substantial and compelling circumstances

Sentence: Mr Wilhelm, I sentence you to an aggregate sentence of 3 years’ imprisonment and I order that you serve 18 months’ imprisonment before you will become eligible for parole - Mr Matthews, you are sentenced to an aggregate sentence of five years’ imprisonment and I fix the period that you must serve before you are eligible for parole as three years’ imprisonment.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Albert	Solicitor for the Director of Public Prosecutions

For the Offender Matthews	Mr P Dunn QC	Dean Cole & Associates

For the Offender Wilhelm	Mr J FitzGerald	Victoria Legal Aid

1 On 4 February 2021, you, Mark Matthews and you, Torryn Wilhelm, pleaded guilty to an indictment containing one charge of trafficking in drugs of dependence in not less than a commercial quantity (Charge 1) and nine charges of trafficking in a drug of dependence (Charges 2 to 10). In addition, you each pleaded guilty to five related summary offences (Charges 42 to 46, both inclusive) being charges of possess a Schedule 4 poison. You consented to forfeiture and disposal orders applied for by the Crown.

2 Each of the charges on the indictment are Giretti-type charges, being that between 18 April 2018 and 25 January 2019, you were in the business of trafficking in various drugs of dependence. In respect to Charge 1, it relates to four different types of anabolic steroid. The total amount of the materials sold and/or seized by police was 67.87 kilograms. In respect to the balance of the indictment,
Charges 3, 4, 5, 6, 7, and 9 relate to the same between dates allegation of trafficking, but in respect to different anabolic steroids, being Stanozolol, Nandrolone, Methenolone, Boldenone, Oxymetholone, Mesterolone and Fluoxymesterone. The amounts trafficked in respect of each of these anabolic steroids, either actually sold or found in your possession for sale, are set out in the schedule to the prosecution opening and I will not repeat them.

3 So far as the balance of the indictment is concerned, Charge 8 concerns trafficking in Alprazolam, commonly known as Xanax, and Charge 10 related to trafficking in Diazepam, commonly known as Valium. The related summary offences relate to the Schedule 4 poisons Anastrozole, Clomifene, Nolvadex, Letrozole and Modafinil, which are drugs designed for breast cancer treatment, their effect being to reduce breast tissue by reducing the level of oestrogen in women’s bodies. Each of the drugs trafficked by you were to be used by the end users to enhance their body building activities.

4 Neither you, Mark Matthews, nor you, Torryn Wilhelm, have any prior or subsequent convictions. Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening upon plea. In summary, the charges relate to internet trafficking by each of you. It was accepted on the plea that you, Wilhelm, worked for Matthews. Orders were made over a website and were delivered to customers via Australia Post. Each of the anabolic and androgenic steroidal agents, being Charges 1 to 7 and Charge 9, are abused with the objective to build muscle. Xanax and Valium (Charges 8 and 10) are abused in body building to reduce pain and soreness and insomnia, which is often a result of the use of anabolic steroids and over-exertion.

5 The total value of the drugs seized, based on the prices for customers given on the website over which the drugs were marketed, was over $1 million.

6 During your offending neither you, Matthews, nor you, Wilhelm, had any legitimate employment. You, Wilhelm, were receiving between $500 and $600 per week in WorkCover payments arising out of an injury to your right shoulder suffered during your prior employment. Each of you resided at 4 Fowler Street, Hoppers Crossing when police executed a search warrant at those premises on 25 January 2019.

7 You, Matthews, used a sophisticated internet system to sell the substances, the subject of the charges on the indictment. It was common ground that you were not the creator of the website, however, a narrative in respect to the nature of the website is important to understand the sophisticated nature of this kind of offending.

8 In April or May 2016, a website www.alphabeast.is was created and was the internet shop front for a business called Alpha Beast that operated as an underground laboratory and marketed products branded 'Helix Pharma' products. The website made the method of ordering drugs, payment for the drugs ordered and the supply of drugs ordered, identification of the supplier, customer and trailing of transactions problematic for authorities.

9 The website was created on an internet hosting website based in Reykjavik, Iceland which assisted business clients in the creation, hosting and security of website for the anonymity of their customers and facilitated trading in Bitcoin currency. Transactions in Bitcoin are difficult to identify and trail. The website was created with IVPN Ltd, which is a subscription based virtual private network provider that routes internet traffic through multiple offshore jurisdictions including Reykjavik, Iceland. It encrypts internet traffic and masks location data of suppliers and customers using the website.

10 By reference to Exhibit C, Alpha screenshot websites, one can observe the nature of the advertisements concerning how the products were to be shipped and paid for and that those that you sold were, '100% legit and trustworthy'.

11 Orders to the website were directed to your computer, Matthews, through an encrypted (Proton) email system which is virtually impossible to track. Bitcoin payments for orders were deposited into a website cryptocurrency account and you, Matthews, had access to that account. Exhibit B is an example of the email orders made via the Proton email system.

12 Your methodology was to deliver the drugs, the subject of the indictment, via Australia Post. On 14 occasions between 18 April 2018 and 22 January 2019, a total of 475 parcels sent via Australia Post were identified as being suspicious, were examined and were found to contain Helix Pharma drugs. They were seized. Each of the parcels contained drugs that were packaged in an identical way. There was approximately 12 kilograms of drugs seized that were priced from the Pharma Helix website at approximately $169,315.

13 Commencing on 16 January 2019, police and Australian Border Force personnel conducted surveillance on the post box at the Werribee Plaza Shopping Centre. You, Wilhelm, were observed at the box posting numerous yellow-coloured parcels consistent with Australia Post standard parcel packages. On 16 January you posted 23 packages, on 17 January you posted 31 packages, and on 22 January you posted 74 packages, all of which were retrieved from the post box and examined and found to contain Helix Pharma drugs.

14 On 17 January 2019, after posting at the post box, you, Wilhelm, were followed to 4 Fowler Street, Hoppers Crossing. On 25 January 2019, a warrant was executed at the Fowler Street address and present were you, Matthews, your partner and child, together with you, Wilhelm. Both you, Matthews, and you, Wilhelm, were arrested and conveyed to the police station. You, Matthews, answered 'no comment' to questions asked of you when interviewed under caution, while you, Wilhelm, made full admissions both at the house in Hoppers Crossing and whilst interviewed under caution.

15 Apart from the drugs and poisons that were seized pursuant to warrant by the police, the police also found a room devoted to the storage of and manufacture of the various drugs that you trafficked. There were beakers, heaters, a mixer and measured liquid pumps designed to convert powdered drug material into liquid form to be placed into vials. Further, there were two large pill presses that contained 'Helix and 'Helix logo' in printing stamps. Police also seized a number of Australia Post parcels ready for delivery and, located in the lounge room of the house at Hoppers Crossing, three screens attached to a computer that operated your Proton email account, Matthews. The computer was on and the email account was open. It contained orders made to the www.alphabeast.is website. There were 642 orders recorded for January 2019 (see Exhibit B).

16 Further, there was a cryptocurrency storage device known as a 'Trezor wallet' attached to your computer, Matthews, and a metal lockable code concealer. A 24 word password to the Trezor wallet was found concealed in a book. You, Matthews, were assisted in accessing your mobile phone to search the internet for a legal practitioner. While doing so, police observed that you had accessed an internet website on your phone that sold pharmaceutical equipment such as pill presses, powder sifters and pill counters.

17 In respect to the content of your record of interview, Wilhelm, you answered all questions asked of you by police. You told the police that you had injured your shoulder in late 2017 and that your involvement in the criminal combination commenced when you moved to 4 Fowler Street in January 2018. You told police that you were directed by Matthews and paid approximately $700 per week by him. You told the police further, that you were only involved in the steroids. You did not manufacturer steroids, although, on occasions you helped Matthews fill vials, and that sometimes you helped to package parcels and that you collected parcels, being the drugs trafficked and poisons possessed by both you and Matthews, and posted parcels at various post boxes.

18 It is to be noted that, whilst each of you were in custody, something in excess of $400,000 worth of Bitcoin was transferred from the Trezor wallet and it was accepted on the plea that this transfer was conducted by someone other than you, Matthews, or you, Wilhelm.

19 The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years’ imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for possess a Schedule 4 poison is a fine of 10 penalty units.

20 You were both arrested on 25 January and you were each remanded in custody; you, Matthews, until 15 July 2019, meaning that at the time of your plea, you had spent 172 days by way of pre‑sentence detention. You, Wilhelm, were bailed on 10 July 2019 and accordingly, you had spent 167 days by way of pre-sentence detention as at the time of your plea.

21 Mark Matthews, you are 36 years of age and live with your partner and 9-year-old son, in a rented house at Hoppers Crossing. You have no prior convictions and no pending matters. You did not conduct a committal and pleaded guilty at what must be regarded as an early stage in proceedings. Accordingly, you are entitled to the benefits of that plea, being that it is some evidence of your remorse and that it has utilitarian benefit. As previously mentioned, you were initially remanded in custody and since being bailed, you have been continuously employed and live with your wife and family.

22 It was put on your behalf by Mr Dunn of Her Majesty’s Counsel, that you became involved in distributing steroids in 2018 when you were laid off work due to a back injury. Mr Dunn informed me that you had injured your back at the gymnasium and aggravated that injury at work. Mr Dunn submitted that, consistent with your general good character prior to your offending and post your offending, you informed your employer of your initial back injury and your employer regarded it as the principal cause for your inability to perform your usual duties and you were laid off.

23 Mr Dunn emphasised that you did not set up the trafficking business nor were a profit sharer in the business. You instructed Mr Dunn that you were a paid employee who was initially paid $1,000. That rose to $2,000 per week.

24 Mr Dunn submitted on your behalf that you could show substantial and compelling circumstances in respect of your own background and your role in your offending that would warrant the imposition of a combined custodial sentence and Community Correction Order. Alternatively, the matters upon which Mr Dunn relied to support his principal submission, went to the issue of the setting of a low minimum term.

25 The phrase 'substantial and compelling' was considered in DPP v Hudgson [2016] VSCA 254 at [111 to 112]. The Court in that decision, when considering the phrase 'substantial and compelling', opined:

'[111] ... It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s.10 should be a heavy one, and not capable of being lightly discharged.

[112] More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as "run of the mill" factors, typically present in offending of this kind.'

26 Tendered as Exhibit 2 on the plea, was a chronology in respect to your life. You were born in Biloela in Queensland. Your father is an electrical engineer. Your parents separated when you were aged three. You remained with your mother who returned to Mallacoota to live with her mother who ran a fish and chip shop in that town. When you were aged six, your mother moved to Bega where she met David Morgan who worked as a storeman in a local hardware store. They commenced a relationship and later moved to Eden. When you were 12 years of age, your mother and Mr Morgan separated, and your mother moved back to Mallacoota. By this time, your grandmother had sold her fish and chip business and was running a hardware store in the main street of Mallacoota. Whilst living at Mallacoota, you attended Mallacoota College.

27 In about September 2000, when you were aged 16, you attended a school excursion in the High Plains near Bogong and upon your return, found the family home empty. You contacted your grandmother who told you that your mother had gone to a women’s refuge in Bega with the rest of your siblings. This caused a rift between you and your mother, to whom you did not speak for many years. With the assistance of the teachers at Mallacoota College and a welfare organisation 'Kids Under Cover', you initially lived in a caravan, then rented accommodation, living on your own on Centrelink payments. Mr Dunn informed me that the school provided you with uniforms and books and the like, but you tended for yourself in respect to general living. To have been placed in this situation at the age of 16 must have been a traumatic experience for you.

28 Whilst doing year 12 and just prior to the end of year examinations, your father had a heart attack and requested you come to live with him in Tumut. You stayed and supported your father, and as a consequence, did not complete your final examinations. You stayed at Tumut living with your father and his new family and obtained a job at the local petrol station and helped your father in his electronics shop. In 2004, when you were aged approximately 20 years, you travelled to Melbourne and reunited with your brother Brenton, who worked at the Footscray Fruit and Vegetable Market and lived in Glenroy. You obtained casual work at the market through your brother. You would both ride your pushbikes to and from the market and, during the time that you worked there, you obtained your forklift licence. However, work would slacken off during the winter period and you would return to Tumut where you worked at a local trout farm.

29 In respect to your work at the Footscray Market, it commenced in the early hours of the morning, perhaps 1 am, and continued through to perhaps 8 or 9 o'clock in the morning. After returning home, you filled the balance of your day, apart from rest, by playing computer games and working out in a gymnasium in Glenroy. The work at the market was hard, as was the work at Tumut, which was both difficult, cold work.

30 While working at the market, you met your wife and once a relationship with her commenced, you did not return to Tumut, but stayed in Melbourne at Glenroy with your brother and worked full-time at the market. In 2010, you and your wife-to-be moved into a house in Hoppers Crossing and you both worked at the market. In 2011, you changed your job and worked for a printing firm at Derrimut because it offered full‑time work and better pay. You also worked normal day shift hours. However, your wife worked at night and when your son Daniel was born in 2011, you shared responsibility for his care by doing the nightshift and your wife did the dayshift.

31 From 2012 to 2015, you lived at Hoppers Crossing and continued to work for Aboros and your wife continued to work nightshift. By 2016 your son Daniel commenced primary school and there he seemed to struggle because of his limited vocabulary, and work commitments meant that he was looked after by his grandmother. However, this arrangement ceased when you found out that Daniel's grandmother would discipline him by the use of corporal punishment because of his inability to understand or comply with his grandmother's requests.

32 In 2017 you commenced working for TNG Hynes as a storeman and you were saving to buy a house. Your wife stayed at home and cared for your son Daniel. In December of 2017, you were retrenched from your work in the circumstances already described. I was informed by Mr Dunn that, as you and your wife had saved some $30,000 in anticipation of purchasing a home, that you were ineligible for Centrelink payments, and together with your wife and son, you moved to
4 Fowler Street in Hoppers Crossing, a house owned by your wife's uncle which you were able to occupy rent-free. It was at this point that you were introduced to the steroid trafficking business.

33 Tendered as Exhibit 3 were eight character references upon which Mr Dunn relied. In each of the references you are described as a hard worker and a man who is devoted to his wife and son. Many of your referees speak as to your good character and that you are a strong and intelligent person and a wonderful partner to your wife and father to your child. You are universally regarded by your referees as a good provider to your family and that the consequences that will flow as a result of your offending have weighed heavily upon you since you were arrested. Mr Ornelis, a director and the company secretary of Proflow Irrigation Pty Ltd, the company for which you work, in his reference wrote that he has discussed the charges with you and that you indicated to him that you made a big mistake and that your family would suffer because of your error in judgment. Further, Mr Ornelis wrote that you had worked for him for 18 months, that you were quietly spoken, diligent and punctual. Further, Mr Ornelis wrote that there is work available for you to return to.

34 Mr Matthews, you are a man without prior conviction and there are no pending matters in respect of you. However, for a period of approximately nine months you were actively involved in the trafficking of anabolic steroids for which you were paid initially $1,000, then $2,000 per week. Whilst the fact of your unemployment may explain why you sought income during this period, it does not explain why you involved yourself in such a pernicious trade.

35 Mr Dunn on your behalf submitted that, as a result of your interest in attending the gymnasium where the presence of anabolic steroids was commonplace, whilst you knew it was wrong to sell them, you did not truly understand the illegality of your conduct. I reject this submission.

36 Applying the test set out in DPP v Hudgson, whilst you are entitled to rely upon your previous good character and subsequent good character, none of the matters upon which you rely could be regarded as constituting substantial and compelling circumstances to justify the imposition of a custodial sentence combined with a Community Correction Order. The trafficking of drugs of dependence over a period of nine months for financial gain in the quantities as set out in the Crown opening and using the sophisticated computer system made available to you and your abuse of the postal service as an innocent agent to fulfil your sales commitments, mean that a substantial term of imprisonment in your case is inevitable. You are an appropriate vehicle for the application of general deterrence and your conduct must be publicly denounced and you must be justly punished.

37 Torryn Wilhelm, you are 30 years of age and reside in Wodonga with your partner Ms Bidois and her two-year-old daughter McKenna. Like your co-offender, you have no prior convictions and have no criminal proceedings pending against you. You are presently employed at Wilson Transformer Company as a powder coater.

38 You were born in Wodonga and are the eldest of your parents' three children. You have a strong and supportive family. You were brought up in Wodonga and attended the Wodonga West Primary School and Wodonga High School until year 10. After leaving school, you obtained work with the Wilson Transformer Company and hoped to secure an apprenticeship there as a welder. When an apprenticeship was not forthcoming, you attended year 11 at the Wodonga City College. You have never been a strong student academically, but as a student were suited to the more 'hands on' subjects like metalwork and woodwork. In addition, you were a keen sportsman, but unfortunately whilst playing soccer, dislocated your shoulder on two occasions. The second injury required surgical intervention.

39 After completing year 11, you worked as a barman at a hotel in Wodonga and later as a sales assistant and then a forklift driver for First Choice Liquor in Wodonga. Thereafter you worked as a meat worker at the Wodonga Meat Works until you cut your hand and went on WorkCover for about four months. When you were 24 years of age, you moved with your then partner to Melbourne and worked at the Melbourne Market in Epping where you met Melanie Anderson who was then the fiancée of your co‑offender. You quickly became infatuated with her.

40 After working at the Melbourne Market, you left and commenced working for Australian Industry Piping in Laverton as a warehouse assistant. While working there in 2017, you once again injured your right shoulder which necessitated a second lot of surgery. At the time of your offending you were in receipt of WorkCover payments of approximately $600. In June 2019 you received a final settlement of $8,000.

41 It was conceded by your counsel Mr FitzGerald, that you had been an intermittent user of cannabis and amphetamine from the ages of 17 to 22. It was put that this use never amounted to dependency, and further, that you have never abused alcohol.

42 It is common ground between the parties that you were subordinate to Matthews. Your principal role was that of postman, in that you posted the anabolic steroids purchased to those persons who purchased them over the internet. In addition, from time to time you would collect parcels at various post boxes which contained the steroids that were on‑sold. In addition, on occasions you helped Matthews fill vials and you sometimes helped in packing the parcels that you posted. For your efforts you were paid $700 per week by Matthews. It was common ground that you played no part in the establishment or maintenance of any bank accounts, internet sites or advertising or Bitcoin accounts. Likewise, it was common ground that the computer equipment found and seized by the police at the time of the execution of the search warrant, belonged to Mr Matthews and that he conducted the transactions with clients on the computer.

43 Tendered on your behalf as Exhibit 2, was the psychological report of Dr Blane‑Brown dated 22 December 2020 as well as Exhibit 6, the psychological report of Jeffrey Cummins dated 14 January 2021.

44 Whilst in prison on remand, you were assaulted and suffered a split lip and chipped tooth. You had done nothing to provoke this attack and found out a couple of days later that it was a test to see whether you were a 'dog'. As a result of this assault you were placed on suicide watch for three to four days. You were transferred from Port Phillip Prison to Marngoneet, where you were stabbed in the leg with a sharpened toothbrush. You instructed Mr Cummins that you were too scared to report this to staff, because you found out that the man who stabbed you in the leg did so because he wanted to impress an older inmate who you were told had been the sergeant-at-arms of the Rebel motor cycle gang Geelong Chapter. You attended to this stab wound by rubbing honey and dirt into the wound to avoid infection.

45 As at 22 December 2020, the date of Dr Blane‑Brown's report, you had undertaken 34 sessions of counselling and treatment with her. Initially, you presented with Post-traumatic Stress Disorder (PTSD) with secondary anxiety and depression following your incarceration at Port Phillip Prison for three months, then at Marngoneet Correction Centre in Lara. You were also treated for your infatuation with you co‑offender's wife, which seemed to have brought you into Mr Matthew's orbit. As at December 2020, you had addressed your obsession and fixation with the woman Melanie, your anxiety levels were reduced, your mood had improved, your memories of prison time had dissipated, although they seemed always to be at the back of your mind. You had effectively addressed and managed any flashbacks and intrusive thoughts resulting from your time in prison and your irritability and hypervigilance had ceased. In Dr Blane‑Brown's opinion, you had 'made a positive response to treatment and achieved all of your therapy goals.' However, Dr Blane‑Brown opined that a gaol sentence is highly likely to induce a major relapse in your PTSD condition, causing further psychological harm and reversal of all positive gains made to date.

46 In your conference with Mr Cummins, you told him that, in respect of your shoulder pain, you took Panadol Osteo and Pregabalin and for your mental health you took Quetiapine 125 milligrams daily to assist you with sleep and to help you with coping with night terrors. You told Mr Cummins that you were prescribed that medication after your release on bail. You told Mr Cummins you were also prescribed the antidepressant Desvenlafaxine 100 milligrams, two tablets daily, since your release on bail.

47 There is tension between the opinion expressed as to your progress by Dr Blane‑Brown and your instructions to Mr Cummins. However, I was informed by Mr Fitzgerald on your behalf, that your instructions to Mr Cummins in respect to the medication that you took at the time of your conference with him, was accurate and that as at the date of your plea you still took that medication on a daily basis.

48 Tendered as Exhibit 8 were eight character references relied upon by Mr Fitzgerald on your behalf. Since your release from prison, you have lived in Wodonga with your partner Ms Bidois and her daughter McKenna. The child regards you as her father and Ms Bidois wrote that you have always been 'up front' and honest about your criminal charges. Ms Bidois wrote as to your sleepless nights as you suffered from night terrors and fears arising out of the assaults that you suffered while in prison. Ms Bidois wrote as to your ability to secure full-time employment and that you maintained regular appointments with your psychologist and maintained your prescribed medication.

49 As part of Exhibit 8 is a reference from Shane Clark, Manufacturing Services Supervisor of Wilson Transformers, your employer. Mr Clark describes your performance and behaviour as exemplary and that you are always respectful and appeared to be focussed on your family and friends in the community and assist them whenever possible. Mr Clark wrote that the company was looking forward to being able to offer you a more permanent and secure position within the business if you were at liberty to take up that opportunity. Your referees wrote as to your relationship with the child McKenna, that you are generally regarded to be a person of good character and that you are a good worker, that you are a naturally caring person and that you are devoted to your partner and her child. Further, that your desire is to return to Wodonga to your family and work and live a normal life.

50 Like your co‑offender, you have always been a worker. It is only injury that had stopped you from working and that, upon being released on bail, you returned to your normal lifestyle, one like that which you had lived prior to the commission of your offending.

51 It is plain from the reports of Dr Blane‑Brown and Mr Jeffrey Cummins that you have gained insight into your offending, as well as insight into yourself.

52 Mr Fitzgerald on your behalf submitted that the combination of your previous good character and subsequent good behaviour upon release on bail, together with the assaults which you suffered whilst in prison on remand and the consequences of those assaults on you and your psychological wellbeing, combined to make out substantial, compelling circumstances that justify not imposing a sentence of imprisonment, other than a combined sentence. Further, in support of this submission, Mr Fitzgerald relied upon your plea of guilty which is some evidence of your remorse and has utilitarian benefit.

53 Mr Fitzgerald further submitted that there is little need for specific deterrence in your case, as you have returned to a normal life and that the period of time that you spent in prison on remand, being some 187 days, when combined with a Community Correction Order, is sufficient punishment, bearing in mind what occurred to you while in prison on remand, and they are consequences which you live with from that time to this day. Further, it was put that you have excellent prospects for rehabilitation.

54 In the alternative, in respect to the matters raised by Dr Blane‑Brown and Mr Cummins in their reports in respect to your experiences in prison whilst on remand, Mr Fitzgerald relied upon limbs five and six of R v Verdins as being applicable in your case. That being, that the condition that you presently suffer from means that a term of imprisonment would weigh more heavily on you than it would on a person of normal health, and further, that there is a serious risk of imprisonment having a significant adverse effect on your mental health. He submitted that each of these factors mitigate sentence in your case.

55 In my opinion, the matters relied upon by Mr Fitzgerald do not make out the heavy burden of establishing substantial and compelling circumstances. But it is plain that any sentence imposed upon you must be moderated by the application of principles five and six of R v Verdins.

56 Whilst you were subordinate to Matthews in the criminal combination that brought about the trafficking of four anabolic steroids in not less than a commercial quantity in a total amount of 67 kilograms and the trafficking of seven other anabolic steroids, you involved yourself in this trade for profit, being $700 paid to you per week by Matthews which supplemented the $600 per week paid to you by WorkCover. The role that you played within the criminal combination was critical to its success. You were the person that mailed all the parcels containing the forbidden substances to each of the purchasers. Further, you picked up the bulk material that was pressed into pills and converted into liquid form and placed into vials that enabled the steroids to be trafficked. General deterrence must play an important role in arriving at an appropriate sentence in your case as must the principles of public denunciation and just punishment. Because of your different roles in the criminal combination to which you have pleaded guilty, as well as the application of the fifth and sixth principles enunciated in R v Verdins, in respect of you, Mr Wilhelm, there will be disparate sentences passed between you and
Mr Matthews.

57 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce sentences that will reflect and promote the purposes of sentencing in a manner appropriate to each of you and your offending, in having regard to your offending being properly described as a course of conduct, I consider that an aggregate sentence should be imposed in respect of each of you.

58 Mr Matthews, you are sentenced to an aggregate sentence of five years’ imprisonment and I fix the period that you must serve before you will become eligible for parole as three years’ imprisonment. I declare that you have spent
190 days by way of pre-sentence detention, not including today. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to eight years’ imprisonment, with a non-parole period of six years’ imprisonment.

59 Mr Wilhelm, I sentence you to an aggregate sentence of three years’ imprisonment and I order that you serve 18 months’ imprisonment before you will become eligible for parole.

61 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to five and a half years’ imprisonment, with a minimum term of three years’ imprisonment.

62 In respect to the related summary offences, you are each convicted on each charge and fined an aggregate sum of $1000.00.

HIS HONOUR: I have signed the forfeiture order and disposal order as sought by the Crown and I hand them down.
MR FITZGERALD: As Your Honour pleases.
MR ALBERT: As Your Honour pleases.
MR COLE: As Your Honour pleases.
HIS HONOUR: Is there anything arising out of the sentence?
MR ALBERT: No. No, Your Honour.
MR FITZGERALD: No, Your Honour.
MR COLE: No, Your Honour.
HIS HONOUR: Thank you. If there's a prisoner officer there, you may remove the prisoners. I'll stand down now till 12.30.
- - -

County Court of Victoria

DPP v Matthews and Wilhelm [2021] VCC 1827 (19 February 2021)