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County Court of Victoria |
Last Updated: 4 April 2023
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JUDGE:
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HIS HONOUR JUDGE MULLALY
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: CRIMINAL LAW – Sentence
Catchwords: Sentence indication
hearing – Plea – Traffick drug of dependence –
commercial quantity – Cultivation of narcotic plant – Handling
stolen goods – Attempting to obtain financial advantage
by deception
– Attempting to obtain property by deception – Mitigation –
COVID times.
Legislation Cited: Sex Offenders Registration Act 2004
(Vic).
Sentence: 6 years and 10 months imprisonment with a minimum
non-parole
period of 3 years and 7 months.
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APPEARANCES:
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Counsel
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Solicitors
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For the Director of Public Prosecutions
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Ms S. Shan
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Office of Public Prosecutions
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For the Accused
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Ms J. Swiney
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Stary Norton Halphen
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1 Jay Matcott, you have pleaded guilty to 12 charges on
Indictment K12032196.1.
2 You have also pleaded guilty to two summary
matters. Your plea of guilty came after an application for a sentence
indication.
3 On 8 December 2022, I indicated that the total effective
sentence I would impose was 6 years and 10 months with a non-parole period
of 3
years and
7 months.
4 The most serious offending on the indictment was
your drug offending. In that regard you were involved in significant
trafficking
of methylamphetamine and more particularly 1,4-Butanediol in the
South Gippsland area.
5 Your co-accused was sentenced by Judge Hogan of this
court some years ago and I have had the benefit of her reasons for
sentence.
6 That said, the sentence imposed by Judge Hogan was for a number
of different offences, as well as many that were relevant to you
and that
co-accused, a man called Poole.
7 A further complication is that Judge
Hogan's sentence was imposed right at the beginning of the pandemic and did not
refer to the
very significant utilitarian benefits that I must now give to those
like you who plead guilty in these times when the court lists
are under great
strain.
8 As to your offending, what was discovered by the police once your
telephone was intercepted was that you secured and sold methylamphetamine
in
amounts ranging from very small quantities, known as points, to grams and up to
ounces. In total your detected sales over a period
of four months from 1 May to
3 August 2019 was 189 grams.
9 Methylamphetamine is a scourge in the
community and those who sell to users must expect stern punishment.
10 You
also sold the drug 1,4-Butanediol. The amounts detected in the telephone
intercepts sold by you was 4.03 kilograms. Commercial
quantity for this drug is
2 kilograms. It is serious offending, though it is also recognised that there
is a much reduced commercial
benefit of this drug compared to other drugs like
methylamphetamines.
11 You have also pleaded guilty to trafficking by having
a quantity of 1,4-Butanediol in your possession or control for sale. This
amount was 10.36 kilograms.
12 These drugs were the property of two other
drug traffickers based in the Mornington Peninsula area who supplied to you.
When they
were arrested the telephone calls established that you took control of
the drugs in the storage facility rented by those other offenders.
13 Thus
your involvement, those drugs was limited. Your role with respect to the
significant amount of 1,4-Butanediol was limited
and as such it must be or that
limited role must be reflected in the overall punishment. Plus, even though the
amount of drugs is
five times the commercial quantity being 10 kilograms and
punishment for those types of offences is quantity based, your sentence
must be
tailored to meet the unusual circumstances of how you came in possession of
those drugs.
14 Your plea of guilty to this charge in all the circumstances
is of particular value.
15 As to the other drug offending, you were involved
in cultivation of four cannabis plants with a neighbour.
16 Your other
offences are an array of serious dishonesty crimes, some of which did not reap
any money and were charged as attempts.
You were involved in an attempt to
defraud an insurance company by staging an alleged theft of your car. You
attempted to obtain
five phones by providing false details. You attempted to
sell an expensive stolen car to a car dealership.
17 Further, you were
involved in handling of a stolen Ute in May 2019 and then later and
concerningly, you were involved in handling
a large amount of copper electrical
cable in June and July of 2019.
18 Also, as part of the investigation, it was
revealed that you used four mobile phones and a landline. All of which were
unknown
to the police, that is, the police who managed your sex offender
registration. You have been required to comply with the Sex Offenders
Registration Act 2004 (Vic) obligations since 2011.
19 You have pleaded
guilty to breaking the registration requirements. That charge was set out on
the indictment.
20 As I have indicated, your drug offending was the most
serious of your crimes. However, the other scams and schemes to defraud
and
handle stolen goods reveal your entrenched criminal ways.
21 You have a
significant criminal history, serving terms of imprisonment, drug offending,
dishonesty offences, driving offences,
weapons offences and the sex offending
over many years. Your offending as reported on the prior criminal history
commenced in 2005
at age 18 and has continued virtually uninterrupted, save for
the times that you have been in prison right up to recent
offending.
22 Despite your past, your mother remains supportive.
23 You
have worked as a carpenter but once you were imprisoned and upon release you
then took up using methylamphetamines and your
working life fell away.
24 The
most compelling mitigatory aspect of your case is the delay since your arrest
and the consequential time on remand that you
have served, which has been
through the whole of the COVID crisis in the Corrections system.
25 You have
been in custody since your arrest in August of 2019. That has been calculated
at 1313 days.
26 In March 2020, the restrictions brought to the prisons to
avoid the catastrophic spread of the COVID-19 virus meant you had many
days in
total or near total lockdown. Visits were eliminated and programs curtailed.
It is well accepted that prison during the
COVID times was more onerous. Thus,
sentences must be moderated to recognise that fact.
27 In your case, delay is
also mitigatory. In the end, the reasons for delay became less of an issue
compared with the fact of years
of delay.
28 Your plea of guilty only came as
another trial date approached. But as was said in your plea, if yours is not
the longest time
on remand of the cases in the
County Court it must be close
to it.
29 Thus, I will declare the enormous amount of 1313 days as
pre-sentence detention.
30 Given the sentence I indicated of 6 years and 10
months with its non-parole period of 3 years and 7 months, it must be the case
that you are approaching a time when you are eligible for parole, if not having
past that date.
31 Whether you are granted parole and when, is for the Parole
Board of course, not the courts. But your rehabilitation is important,
perhaps
not only for you but more so for the community, so that there is greater
protection for the community from your drug offending
and dishonesty scamming if
you reform.
32 Your reform will be facilitated and monitored by the Parole
Board or that is my hope. Again, I emphasise whether you are granted
parole and
when is for the Parole Board to determine.
33 If you fail, of course and
return to drug use, you will no doubt receive further gaol sentences that will
be significant and see
you waste your life. It is time to take stock and go
back to the ordinary working life that you once had, give support back to your
mother who has supported you come what may.
34 I have considered the question
of parity, insofar as I could with the co-accused Mr Poole’s sentence that
I have indicated
is shorter. Even though it was said in your absence that you
were the more serious offender and somehow influenced Poole.
35 Whether that
be the case or not is not a driving factor at this point because the mitigatory
matters that arise from your plea
of guilty, and the fact that you have been in
prison on remand for so long, mean that a sentence less than his is just and
appropriate.
36 Doing the best, I can, dealing with the indictment, I impose
the following penalties.
37 Charge 1, the breach of the Sex Offenders
Registration Act, 1 month.
38 Charge 2, trafficking in methylamphetamines, 2
years.
39 Charge 3, cultivating cannabis, 1 month.
40 Charge 4, handling
the stolen Commodore Ute, 6 months.
41 Charge 5, trafficking 1,4-Butanediol,
4 years, that is trafficking a commercial quantity.
42 Charge 6, attempting
to obtain by deception, 6 months.
43 Charge 7, attempting to obtain by
deception, 3 months.
44 Charge 8, attempting to obtain by deception, 2
months.
45 Charge 9, handling stolen goods, being the copper cabling, 8
months.
46 Charge 10, for trafficking in a commercial quantity, that is, 10
kilograms of the 1,4-Butanediol, 4 years.
47 Charge 11, handling stolen goods
- it relates to the Mercedes Benz, 10 months.
48 Charge 12, handling stolen
goods or obtaining by deception the Mercedes,
6 months.
49 Summary
offences: the summary offence Charge 27, dealing with the proceeds of crime,
one month.
50 Summary Charge 34, having prohibited weapons, 7
days.
51 Cumulations are as follows: the base sentence is Charge 10, the
trafficking in the 1,4-Butanediol of 4 years, Charge 2, 14 months;
Charge 4, 2
months; Charge 5, 14 months; Charge 9, 2 months; Charge 11, 2 months.
52 If
my mathematics is correct that will give a total effective sentence of 6 years
and 10 months and I fix a non-parole period of
3 years and 7 months.
53 So, I
have said a number of times, you have been in custody now for an extremely long
period of time on remand a total of 1313
days, that amount or time having been
reckoned, I now declare it is part of the sentence that I have just
imposed.
54 I will ensure that declaration is entered into the records of
court, so that the prison authorities know that you have served 1313
days of the
sentence that I have just imposed.
55 Had you pleaded not guilty to these
offences and been found guilty of them I would have imposed a sentence of 9
years with a minimum
term of 6 years.
56 Is there anything further required,
other than consequential orders for disposal and if there are any of
those?
57 MS SHAN: Nothing from me, Your Honour.
58 HIS HONOUR: All
right. Thank you very much for all your assistance. As I've said, I might
leave this. If you need to have word
with Mr Matcott, that can
be - -
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59 MS SWINEY: Thank you. That would be helpful.
60 HIS HONOUR: Thank
you.
- - -
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