Director of Public Prosecutions (Cth) v Machin
[2024] VCC 1601
•14 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01621
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| KYLE JOHN MACHIN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2024 and 16 September 2024 | |
DATE OF SENTENCE: | 14 October 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Machin | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1601 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Attempt to import commercial quantity border-controlled drug (cocaine) – Essential role in consignment importation – Acting on instructions of others – Reckless state of mind – Motivated by financial gain amidst significant cocaine addiction – Examination of phone indicated in business of receiving and trafficking drugs
Legislation Cited: Crimes Act 1900 (Commonwealth)
Cases Cited:Wong v The Queen (2001) 207 CLR 584
Sentence: Convicted and sentenced to Total Effective Sentence 8 years’ imprisonment with a non-parole period of 4 years’ and 6 months' imprisonment – 593 days’ imprisonment pre-sentence detention declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr R. White (Sentence) Mr M. Keks (Plea) | Office of Public Prosecutions |
| For the Accused | Ms S. Holmes | C. Marshall & Associates |
HER HONOUR:
1Kyle John Machin, you have pleaded guilty to one charge of attempting to import a commercial quantity of a border-controlled drug, that offence has a maximum penalty of life imprisonment.
2The maximum penalty reflects the seriousness with which Parliament regards this offence and is one of the matters that I must have regard to in sentencing you as it is a yardstick against which a sentence is to be considered and denotes the inherent seriousness of the offence.
3I must impose a sentence that is of a severity appropriate in all of the circumstances of the offence having regard to the matters set out in s16A(2) of the Commonwealth Crimes Act 1900.
4Your offending was opened by the prosecution as follows.
5I was told that the charge to which you have pleaded guilty related to a consignment which arrived in Australia on 24 December 2022, and which was found to contain 17.97 kilograms of pure cocaine.
6You made two payments to the freight forwarder which had been engaged to clear the consignment through customs. You did this at the direction of another person who gave you instructions via the application, Snapchat. By making the payments, you attempted to import the contents of the consignment, being reckless that it contained drugs.
7You were 29 years old at the time of the offending, and I understand you are now 32.
8You were living at an address in St Kilda Road, St Kilda, and using a mobile phone number ending 766 which was subscribed in your name.
9The basis for the charge on the Indictment is that the consignment which is the subject of the charge was imported into Australia and intercepted at Melbourne Airport on 24 December 2022. It was found to contain about 18 kilograms of pure cocaine. The consignment had been sent by air from Greece.
10Between 25 December 2022 and 28 February 2023, a person using the name 'Ryan Eaton', with the email address [email protected], engaged a freight forwarder to facilitate the customs clearance and delivery of the consignment with the ultimate intention of gaining possession of the drugs. The true identity of the person who used the 'Ryan Eaton' name is unknown. During the period to which I have just referred, Eaton sent the freight forwarder emails containing a letter of authority which recorded your mobile phone number as the contact number for the consignee, as well as screenshots for two bank transfers - $3,520.13 on 28 September 2022 and $2,062.50 on 27 February 2023. These had been made from your bank account to pay taxes and other fees associated with the importation of the consignment.
11Examination of your mobile phone after your arrest revealed that you made the two payments to the freight forwarder at the direction of a person identified as 'Ellis Oz', with whom you communicated via Snapchat. The prosecution case is that by doing so you attempted to import the consignment which had contained a commercial quantity of cocaine, being reckless that the consignment contained drugs.
12The details of the offending are that on 24 December 2022 the Australian Border Force at Melbourne Airport intercepted and examined a consignment which was addressed to Eaton Electrical Solutions at Unit 2, 45 Simcock Street, Somerville. The consignment was declared to contain water pumps with a gross weight of 200 kilograms.
13Upon examination, the consignment was found to consist of 12 cardboard boxes on a pallet, eight of which contained a blue air pump within which was concealed three packages wrapped in tape and containing a white powdery substance. The substance was tested and gave a presumptive positive result for cocaine.
14Forensic analysis which was subsequently conducted revealed that the consignment contained a total weight of 23,958.1 grams of white compressed powder, comprising 75 per cent cocaine. The consignment therefore contained 17,968.5 grams of pure cocaine.
15On 25 December 2022, the person using the name Ryan Eaton sent an email to Clarke Global Logistics Pty Ltd ('CGL') requesting a quote for a customs broker. Attached to the email was the Air Waybill for the consignment showing that the carrier, Hellas Logistics SA, had been engaged on 20 December 2022 to carry the consignment by air from Greece.
16CGL is a customs broker and freight forwarding company which organises goods that have been imported into Australia to be cleared with the Australian Border Force.
17During the course of 25 December, a director of CGL, Assunta Bux, exchanged emails with Eaton in which Eaton accepted CGL’s quote and provided a letter of authority authorising CGL to act on behalf of Eaton Electrical Solutions which recorded a contact number for Ryan Eaton as your number. Bux sent Eaton an invoice for duties and taxes as well as CGL’s fees totalling $3,520.13 with a reference number ending 487, and Eaton sent Bux an email containing a screenshot of a bank transfer of $3,520.13 to CGL’s bank account from your bank account with the reference number ending '487 Eaton …'
18Between 25 December 2022 and 9 February 2023, Eaton exchanged emails with Bux and others at CGL who told him that the consignment could not yet be collected because it was being held by customs.
19On 15 February 2023, a controlled operation authority was issued under the Commonwealth Crimes Act authorising Federal Police and employees of CGL to facilitate the delivery of the consignment.
20On 16 February 2023, an employee of CGL emailed Eaton to advise the consignment would be cleared through customs in the next few days. Eaton replied to confirm the delivery address, requested that CGL arrange delivery of the consignment, and asked for a final invoice.
21In an email on 23 February 2023, Eaton said that a person named 'Greame', G-r-e-a-m-e, would be present to receive the consignment at the delivery address.
22On 24 February 2023, Bux sent Eaton a second invoice for delivery charges, terminal fees and storage charges totalling $2,062.50 with the reference number ending 487. Eaton replied attaching a screenshot of a bank transfer of $2,062.50 to CGL’s bank account from your bank account with the reference number to which I have just referred.
23On 28 February 2023, a CGL employee emailed Eaton to advise delivery would be made the following day.
24On 1 March 2023, police attended the delivery address of 2/45 Simcock Street, Somerville, but no-one was present to collect the consignment.
25I was told that your banking records showed that you made the two payments of $3,520.13 and $2,062.50 to CGL, which were recorded in the screenshots of the bank transfers sent to CGL by 'Ryan Eaton'.
26Examination of your mobile phone after your arrest revealed that you made those bank transfers at the direction of a person who identified as 'Ellis Oz' in your Snapchat application. At the time of your arrest the application contained the following partial admissions between Ellis Oz and you.
27On 19 December 2022, you said: 'So I’m just sending 100 to Thag, T- h- a-g, Acckunt, A-c-c-k-u-n-t' which appeared to have meant to say 'that account.' And then: 'Yeah?'
28On 25 December 2022, Ellis Oz replied: '$3,520.13'.
29On 25 February 2023, Ellis Oz sent you a message as follows:
'Bank account name: Clarke Global Logistics Pty Ltd
Bank: National Australia Bank.'
He gave the BSB and account number with a reference '3025487', and then the figure '$2,062.50'.30On 25 February 2023, you sent a screenshot of the $2,052.50 bank transfer to Ellis Oz.
31The screenshot which you sent to Ellis Oz on 25 February 2023 was the same as the screenshot emailed by Ryan Eaton to CGL on that day. The prosecution stated that it could be inferred that you had also sent the first screenshot to Ellis Oz after making the payment on 25 December 2022. I am prepared to make this inference in all of the relevant circumstances.
32The prosecution also submitted that it could be inferred that you made the two payments to CGL at the direction of Ellis Oz and that you provided the screenshots of the bank transfers which were subsequently sent to CGL by Ryan Eaton. I am prepared to make this inference as this reflects the role that you played in the offending.
33In addition to the partial conversation found in the Snapchat application, the phone contained a saved image dated 15 December 2022, showing messages between Ellis Oz and you via Snapchat in which you said: 'Yeah, I was going to say about 11-12 suits me lad; I’ll need the address again tho. I think I have his number; Gary, is it?', and 'Ellis Oz' responded with the address of 45 Simcock Street, Somerville. The prosecution submitted in the opening that it could be inferred that at the time of these messages it was intended that you would have some role in relation to the collection of the consignment which was further demonstrated by the inclusion of your mobile phone number as the contact number for Ryan Eaton on the letter of authority sent to CGL on 25 December 2022. I am prepared to make this inference, although I am unable to infer that you were the one designated to take delivery of the consignment.
34At about 12.52 pm on 1 March 2023, police executed a search warrant at your residence in St Kilda.
35You were present when police arrived and in possession of an Apple iPhone 12 which contained a SIM card associated with the mobile phone number ending 766. You provided access to the phone and confirmed that it was yours. The phone was seized by police.
36You were arrested and took part in a record of interview making 'no comment' answers.
37On 13 April 2023, police executed a search warrant at the Westpac Banking Corporation. Bank statements for your bank account showed the following:
(a) The payment of $3,520.13 to CGL made by Osko and withdrawn from your account on 28 December 2022.
(b) The payment of $2,062.50 to CGL made by Osko and withdrawn from your account on 27 February 2023.
(c) Unexplained cash deposits on the following days:
(i)30 November 2022 - $1,000.
(ii)8 December 2022 - $1,000.
(iii)12 December 2022 - $13,000 comprising six transactions.
(iv)15 December 2022 - $1,000.
(v)16 December 2022 - $4,000.
(vi)28 December 2022 - $1,350.
(vii)11 January 2023 - $1,600.
(viii)20 February 2023 - $900.
(ix)23 February 2023 - $2,000; and
(x)27 February 2023 - $2,100 comprising two transactions.
38The prosecution say that the cash deposits made around the times of the two CGL payments were likely money received by you to make those payments and/or your reward for doing so.
39Examination of your mobile phone revealed that it contained messages exchanged between other persons and you which showed that you were in the business of receiving and trafficking drugs, including cocaine, which had been imported from overseas:
(a) First, on 5 November 2022, you exchanged messages with a person named 'Keith Work Oz' in which 'Keith' asked whether you could supply drugs. In particular, 'Keith' asked whether you had 'coke', a reference to cocaine. You responded 'negative; it’s actually shite around atm, I’m waiting on something, could potentially be next week'; 'well it’s not a deffo mate, hasn’t gone through customs just yet'.
(b) Second, on 24 February 2023, you exchanged text messages with a person named 'Lanky Lee' during which you said 'got big package coming in a week or two mate': and
(c) Thirdly, on 25 February 2023, you exchanged messages with a person named 'Badger Cormagh' in which 'Badger' said 'that thing never come'; and you replied 'mate, it's fucked my head up so far man, fucking nightmare, I’m still broke as fuck like'.
40The prosecution says that the references to the 'big package' in your conversation with Lanky Lee and the conversation that you had with Badger Cormagh were likely references to the consignment which is the subject of Charge 1. In view of the timing of the conversations and the other relevant circumstances in respect of the consignment, it is likely that this is the case.
41Mr Machin, your offending is most serious and warrants a punishment of a severity which is appropriate in all of the relevant circumstances:
42Bearing in mind your state of mind being one of recklessness, you became involved in the importation of a large quantity of drugs, a quantity which was nearly nine times the threshold for a commercial quantity of cocaine. You played an important role in the attempted importation, making two payments to the freight forwarder on two separate occasions at the direction of Ellis Oz, and you accounted to this individual by sending screenshots which were later sent to the freight forwarder as proof of the payments. Therefore, you played an essential role in the importation of the consignment, and it was only thanks to the intervention of the police that the consignment was not successfully imported.
43The fact that various details such as the delivery address for the consignment and the fact that you might well have been contacted by CGL in relation to the consignment indicated that you were trusted by your co-offenders in relation to a most valuable delivery of cocaine. However, this is as far as I can discern your role in relation to the attempted importation- I also note that you were acting on the instruction of others and that your state of mind was one of recklessness. At the end of the day, I do not accept that your offending is at the lowest level, but I do not accept that it is at the highest either. As I say, your role was an essential one in helping to affect the successful importation of the consignment where your state of mind was one of recklessness.
44In sentencing you I have had regard to the principles set out in the prosecution sentencing submissions and have applied those in your case. Amongst these are the following:
'The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.' and finally:
'Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.'
45As the learned prosecutor at the plea hearing set out in his written submissions, in Wong v The Queen, the High Court emphasised the primacy of general deterrence and identified features that usually inform an assessment of the objective gravity of a particular instance of drug importation offending being 'quantity, role, knowledge, and reward'. And I refer to paragraphs 7 and 8 of the prosecution submissions dated 9 July 2024 in the decision of Wong v The Queen (2001) 207 CLR 584 at [64].
46Your counsel told me that at the time of the offending you were funding a significant cocaine addiction which was your motivation in becoming involved in the offending. She told me that the payment that you were to receive were 'rounded off' figures from monies paid to you. She told me that you could not recall what the various payments actually were for in respect of the various sums set out in the table in the prosecution opening, to which I have referred, but that at the relevant time you were also deriving income from labouring work in the construction industry and from playing poker. She submitted that even if all the payments which were set out in the table were the pay that you were to receive, less the payments that you had to make, the amount of pay was not significant in the scheme of things. On the other hand, the prosecution query that you were only to receive the rounded off amounts, pointing to the timing of the other payments into your account and submitted that the message which you sent on 25 February 2023, where you said you were broke, was likely a message in relation to your expectation of the consignment coming through for you and receiving some further financial reward.
47In the end, I am unable to find what payments you were to receive in relation to the services that you provided giving rise to your offending, but I accept that you were motivated by financial gain, albeit that it appears that you were using the money to help pay for your own drug addiction, and it also is apparent that this offending was not entirely out of the blue in view of the various messages relied on by the prosecution.
48Your former partner, Ms Victoria Clynch, appeared to suggest in her character reference that you were helping to pay for her expenses and that of your child at this time, however, this was not something that your counsel submitted was the case at the sentence indication hearing and there was some discussion at the plea hearing in relation to this aspect.
49At the end of the day, I regard your moral culpability for the offending as being high, although it would have been even higher if there was evidence of you leading a lavish lifestyle or not being addicted to drugs yourself.
50I allow for a fairly substantial discount in the sentence you would otherwise receive in view of the fact that you entered a plea of guilty after a contested committal hearing and following a sentence indication hearing in this court in circumstances where the matter had been listed for trial in September and the sentence indication hearing took place in July of this year. I understand that some further evidence was provided to your legal representatives on the morning of the committal hearing which made the prosecution case a stronger one. Notwithstanding this, a contested committal hearing was conducted, and you entered a plea of not guilty at that stage. Pre-trial had been listed for February of this year in relation to the admissibility of the text messages, which was the further material provided on the morning of the committal hearing, however, the pre-trial was not reached. In all of the circumstances, you have ultimately facilitated justice in the matter as there has been no need to conduct a trial and the matter resolved several months before the trial was listed, saving the witnesses the time and trouble of giving evidence at trial and saving the community the time and expense of a trial. Had you entered a plea of guilty at an earlier stage the discount would have been greater, however, as I say, you are entitled to a fairly substantial discount in all the relevant circumstances.
51It was submitted by your counsel that you are remorseful for your offending and in this regard, she pointed to the various expressions of remorse recorded by a number of character witnesses, including family members with whom you have spoken. Mr Machin, I accept that you are very sorry that you have placed yourself in this position and for the impact that your incarceration has had upon others in your family and friendship group, however, in view of the course that you chose to take in respect of these proceedings and the nature of the utterances made to others, I cannot find that you are remorseful in relation to the impact that your offending might have potentially had on others in our community. However, I hope that you are developing appropriate insightful remorse in this regard.
52You have no criminal history, which is a matter in your favour, and I accept from the 26-character references in support of you, that apart from this period of offending behaviour you are of otherwise good character.
53In sentencing you I take into account your background as follows.
54You are now 32 years old.
55You were born in England and are one of six children to your parents who are devoted to your support in these proceedings. You and your family lived in
Stoke-On-Trent in council housing in a three-bedroom house. You and your two brothers shared a room, and your three sisters shared a room. You are the second oldest.56Your parents struggled to support the family, and life was most difficult for you.
57You commenced drinking and smoking cannabis at the age of 13 and this resulted in behavioural issues which saw you being kicked out of school in Year 10. Your parents were aware of your drinking, and they were heavy drinkers themselves.
58After school you joined the army which you instructed your counsel was an attempt to make your parents proud. However, your behavioural issues continued, and you were kicked out of the army after 10 months. You commenced using cocaine at this time.
59You then worked in a call centre for a year before travelling to Spain to work on a 'party island' for seven months. By this time your cocaine habit was problematic.
60When you returned to England you started 'ground working' which involved building foundations for homes and driving a digger. You continued this work until you travelled around Asia and then arrived in Australia, initially for a holiday in June 2017.
61In late 2018, you met Victoria Clynch, who was on holiday from Ireland. You dated and soon Victoria became pregnant. This was not a planned pregnancy. You and Victoria moved in together when she was pregnant. At this stage you were no longer in a relationship, but you wished to support her as neither of you had family in Australia.
62Your son, Reuben, was born in 2020 and is now four years old. Initially you lived with Victoria and Reuben, however, when Reuben was 18 months old you moved out as you and Victoria were not getting along. You were using cocaine heavily at this time and this caused Victoria to disallow you access to Reuben. You then attended co-parenting counselling with Victoria and resumed contact with Reuben just before his second birthday.
63Since this time, until you were taken into custody, you had shared custody of Reuben. In the weeks before your remand you and Victoria and Reuben had moved back in together.
64Whilst in Australia you were working in construction, and you have used cocaine heavily and consistently all this time.
65I was told that neither you or Victoria have any family support in Australia, although according to your mother’s character reference, when she and your father came to Australia for Christmas in 2023 they were well supported by a number of your friends and she spoke of you having a large group of friends who are very supportive of you. She said that they want to help in whatever way they can. She also spoke of your younger brother in Australia who has 'bent over backwards' for you. There were a number of people in court in support of you at the plea hearing.
66I was told that you and Victoria support each other and that Victoria ensured Reuben visited you in custody about once a month. Ms Clynch spoke of the difficulties in explaining to Reuben where you are and has had to say that you were in hospital.
67I was told that upon Reuben being born you and Victoria chose to stay in Australia as you believed it would be a better life here rather than in the United Kingdom. However, it became evident that you were both in Australia illegally. In this regard, I was told that the migration agent you had engaged had been recalcitrant in addressing your migration issues. Ultimately, I received a brief email at the plea hearing indicating that had there not been any charge or arrest your visa situation would have been rectified and you would have been added to your partner’s protection visa and granted a bridging Visa C, ensuring your lawful status. I understand that Ms Clynch also has a bridging visa. Therefore, it is uncertain as to whether you would have had a legitimate prospect of remaining in Australia on any view of things. At this stage, Ms Clynch is unsure as to what she intends to do and is awaiting the outcome of these proceedings to further consider her position in terms of whether she would seek to remain here or whether she will return to the United Kingdom.
68It was submitted that your deportation to the United Kingdom was inevitable, although you are yet to receive any documentation from the authorities in this regard. In all the circumstances I allow that time in custody will be harder for you, and has been harder for you, because of the uncertainty as to whether Ms Clynch and your child will remain in Australia and due to the prospect of you being deported upon completion of your sentence. This means that time in custody will be harder for you than for others not facing those concerns.
69I understand that you have now had a forced detoxification through your incarceration, and you are now drug free for the first time in your adult life. I accept that this is a significant matter in view of the apparent motivation for your offending being, at least in part, related to supporting your cocaine habit.
70I also take into account in your favour that this is a salutary lesson for you and it is your first time in custody in circumstances where you have never faced court proceedings before. Again, custody in such circumstances is harder for you than for someone who is a more seasoned prisoner.
71In all the relevant circumstances, I assess your prospects for rehabilitation are good and I need place only minimal weight on specific deterrence. However, I must place strong weight on general deterrence in a bid to deter others from offending as you have. I must also ensure that you are adequately punished for the offence you have committed.
72I have also considered the comparative cases to which I have been referred and current sentencing practice, bearing in mind that this is but one sentencing consideration and it is not a controlling one.
73I gave a sentence indication in this matter that the maximum head sentence required to be served would be eight years and six months' imprisonment, which was an indication that was accepted by you.
74I also indicated a preparedness to impose a non-parole period which involved a large gap between the head sentence and the non-parole period which I regarded was appropriate in your case in all the relevant circumstances.
75Having considered all of the matters in your case, I have arrived at a sentence that, in my view, is appropriate in all of the relevant circumstances.
76You are convicted of the offence.
77You are sentenced to eight years’ imprisonment which is to commence today, and I impose a non-parole period of four years and six months.
78I declare that you have already served 593 days which will be deducted from that sentence.
79If not for your plea of guilty I would have sentenced, you to a head sentence of
10 years’ imprisonment with a non-parole period of seven years.80Is there anything arising?
81MS HOLMES: No, Your Honour. As Your Honour pleases.
82MR WHITE: No, Your Honour.
83HER HONOUR: Alright, thank you. I am now going to leave the bench. I don't know if there's an opportunity – did you want to have a quick word with your client.
84MS HOLMES: I will, just very briefly, Your Honour.
85HER HONOUR: We do have a trial that's commencing at 10.30, so if it could be very brief.
86MS HOLMES: Just a couple of minutes – yes, thank you, Your Honour.
87HER HONOUR: Yes, thank you.
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