Director of Public Prosecutions v Mackenzie
[2022] VCC 1555
•12 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MACKENZIE |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2022 | |
DATE OF SENTENCE: | 12 September 2022 | |
CASE MAY BE CITED AS: | DPP v Mackenzie | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1555 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Plea of guilty – Trafficking in a drug of dependence – Possession of a drug of dependence – Serious example of the offending – COVID-19 pandemic – Reasonable prospects of rehabilitation.
Legislation Cited: ss 5, 6AAA, 18 Sentencing Act 1991 (Vic).
Cases Cited:Arthars v The Queen [2004] VSCA 222; Boulton v The Queen [2014] VSCA 342; Day v The Queen [2011] VSCA 243; Plater v The Queen [2013] VSCA; R v Merrett [2007] VSCA 1; Worboyes v The Queen [2021] VSCA 169;
Sentence: 21 days’ imprisonment with a two year Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Y. Hardjadibrata (Plea) B. Rossiter (Sentence) | The Office of Public Prosecutions |
| For the Accused | D. Sala (Plea) | Emma Turnbull Lawyers |
HER HONOUR:
1Daniel Mackenzie you have pleaded guilty to the following charges:
(a) Trafficking in a drug of dependence (Charge 1); and
(b) Possession of a drug of dependence (Charge 2).
2You have also agreed to this Court hearing, and have pleaded guilty to the following summary charges:
(a) Possession of a prohibited weapon without exception or approval (Summary Charge 5); and
(b) Deal with property suspected of being proceeds of crime (Summary Charge 6).
3The maximum penalties for these offences are as follows:
(a) Charge 1 – 15 years’ imprisonment;
(b) Charge 2 – 400 penalty units or 5 years’ imprisonment or both;
(c) Summary Charge 5 – 240 penalty units or two years imprisonment; and
(d) Summary Charge 6 – two years’ imprisonment.
Circumstances of your offending
4The full circumstances of your offending are set out in the prosecution summary marked as Exhibit A
5On 22 May 2020, police executed a search warrant pursuant to the Drugs Poisons and Controlled Substances Act 1981 (Vic) at your residence.
6Police entered the property and located a bag of white crystalline substance believed to be methylamphetamine on a pool table in the rear garage area. You were arrested and cautioned.
7The white substance was subsequently analysed and found to be isoprophylbenzylamine weighing 25.8 grams.
8In your pocket was $840 cash, which is the basis of Summary Charge 6 being the deal with property suspected of being proceeds of crime.
9Police continued the search of the garage and located the following drugs of dependence:
(a) A one litre “Sika” plastic jug containing clear liquid, being 17.7 grams of 1,4 Butanediol;
(b) A plastic funnel with residue of 0.2 grams of 1,4 Butanediol;
(c) A blue 25L container with 6,993.7 grams of 1,4 Butanediol;
(d) A Coles snap lock bag containing 0.6 grams of methylamphetamine; and
(e) A coffee filter in the black chest of drawers containing 0.6 grams of methylamphetamine.
10The drugs located during the search were subsequently analysed and the total quantities of drugs located were as follows:
(a) 1,4 Butanediol: 7,016.2 grams (7 kilograms); and
(b) Methylamphetamine: 1.2 grams.
11You were taken to Melbourne West Police station and participated in a Record of Interview. You were remanded in custody initially and you have a total of 21 days in pre-sentence detention.
Gravity of the offending
12The charge of trafficking is serious, as reflected by the maximum available sentence. I accept the prosecution submission that this is a serious example of trafficking of 1,4 butanediol. You were in possession of over six times the commercial quantity of 1,4 butanediol, with an intent to traffick up to but not exceeding the commercial quantity of 2.0k of the drug. Clearly the quantity of drug involved is a highly relevant factor in an assessment of the gravity of the offending but it is not the only one. There are also other important indicators of offence seriousness, including role, duration and motivation of offending. In your case, I take into account in my assessment that this is one charge of trafficking simpliciter on a single date, being 22 May 2020. I accept your offending generally occurred within the context of your own significant drug use at the time, though this was not relied upon as a mitigating factor or as moderating your moral culpability.
13In all the circumstances, your Counsel properly conceded that the offending was serious and that in particular general deterrence, punishment and denunciation are prominent sentencing considerations. Trafficking in drugs, particularly in this quantity, needs to be denounced in strong terms.
14In relation to the possession charge, I accept that the higher penalty regime applies in your case, particularly when seen in light of the messages, as outlined at paragraph [17] of the Crown opening.
Plea of guilty
15Your case was originally listed for trial, which proceeding in March 2022. The jury were discharged without verdict. At your trial you entered a plea of guilty to the charge of possession of drugs and not guilty to trafficking, including at that stage, trafficking in a commercial quantity. After negotiations you ultimately entered a plea to the current indictment. While it’s not an early plea entered at the first available opportunity it’s a plea of guilty that followed from fruitful resolution discussions and one that still entitles you to a discount in sentence. Your plea represents an acceptance of responsibility on your part. It also has heightened utilitarian value, given its entered at a stage where the courts continue to suffer the backlogs caused by the pandemic.[1]
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
16Your personal circumstances were outlined by your Counsel Mr Sala and were also detailed in the psychological report of Ms Pam Copperwaite.
17Your now 35 years of age. Your background was a relatively unremarkable one. You were raised in a loving and hardworking household. You have one brother who lives in Darwin and you’re close to your family.
18Your parents have been very supportive of you, in many ways, including financially, and they continue in their support of you. This is clear in the references that they have each provided.
19You left school in Year 10 and you recall having difficulties concentrating and focusing at school. Ms Copperwaite is of the opinion that you were likely suffering from undiagnosed Attention Deficit Hyperactivity Disorder (“ADHD”) at the time. She opines that your academic decline was inevitable and that your ‘capacity to learn organisational skills, establish good social skills, make good decisions and deal with everyday demands was severely compromised’. Upon leaving school at 15 years of age, you worked in a number of labouring jobs. Your last job was working for a company named Eco-Outdoor, which was a landscaping business.
20At the age of 23 you hurt your back at work and accepted a WorkCover claim. You had major spinal surgery and did not return to work after this. In her letter your mother notes that this was a difficult time for you and you struggled to cope. Compounding things during this period is that you also lost your best friend through suicide. You have also suffered the loss of at least another six friends through suicide. These events have had a traumatic impact on you.
21You have used a range of drugs since you were around 18 years of age. You started using drugs recreationally and mostly on weekends. You then began to gravitate towards drug using peers and at the age of 21 you were introduced to ice. Over the years, your most addictive drug has been ice and 1,4 butanediol. Your use has fluctuated and has typically increased during particularly challenging times, such as the loss of your best friend. You described yourself to Ms Copperwaite as a ‘functional drug addict’ and that you managed to hide the real extent of your drug use from your family.
22This is consistent with the evidence of your wife, Ms Shannon Mackenzie, at your trial in March 2022. She didn’t know you were a heavy methylamphetamine user. She had preconceived ideas of what an addict was and you didn’t fit that stereotype. She stated, ‘we were always doing things together. We’ve … had two babies together. I know you probably think I’m stupid but I didn’t know’.
23You have been in a relationship with your wife for some 16 years and have been married for seven years.
24Your wife is the sole income earner for the family and works full time while you look after your two preschool aged children, your daughter aged six and your son aged two.
25Ms Copperwaite considers that you currently meet the diagnosis of ADHD, as well as anxiety relating to this matter. As previously noted, she considers that you suffered from ADHD as a child. She opines ‘the implications of not having ADHD diagnosed and treated as a young child can be a serious impediment and I believe it was life changing for Daniel … It is not surprising that Daniels’ addiction is amphetamine based which is the treatment for ADHD, i.e. dexamphetamines’. She considers that you have largely managed your anxieties and ADHD through the use of illicit drugs.
Prior criminal history
26You have a relevant prior criminal history, effectively commencing in 2014. On 31 January 2014 you were fined for possession of drug charges, including possess methylamphetamine. On 22 August 2017 you were sentenced to a 24 month community corrections order (“CCO”) on charges of trafficking methylamphetamine, trafficking cannabis, trafficking GHB, cultivate cannabis, firearm and dishonesty offences.
27I take your history into account in particular in assessing your rehabilitative prospects and the weight to be given to specific deterrence and community protection.
Factors in mitigation
28On your behalf, Mr Sala relied upon a number of mitigating factors and relied heavily on the delay in your case. He submitted that in your case the delay mitigates the punishment which the seriousness of your offending might otherwise warrant.
Delay
29As agreed between the parties, there has been a delay in the resolution of your case. The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Every case is different, and the factors seen properly to effect the exercise of the sentencing discretion will vary according to circumstances.[2] Taking all of the circumstances into account here, I consider that delay is a powerful mitigating factor in your case.
[2] Arthars v The Queen [2004] VSCA 222; Plater v The Queen [2013] VSCA 258 at [25]-[29]; R v Merrett [2007] VSCA 1 at [35]; Day v The Queen [2011] VSCA 243 at [18].
30I take into account the stress and uncertainty as to your future that you have experienced during this period. Moreover, I take into account the delay in assessing your rehabilitative prospects.
31You have attended upon your treating psychologist, Ms Copperwaite for 17 sessions since June 2020 and you continue to see her monthly. You present with insight into the immense impact your addiction and secrets have had on your family. You impressed her as committed to ceasing your drug use.
32Since your remand in 2020 you have not used illicit drugs. This represents your longest period of abstinence for a long time now.
33In his letter, your father observes that with the support of everyone close to you in the last three years your relationships have improved. Your father was the former president of the St Albans Cricket Club and more recently is now the coach for a team of players with disabilities. You have been a fantastic help to him with training nights and game day. The current president of the Club and your good friend, Jeff Montebello, describes you as ‘a hugely important member of the cricket club as his volunteering is second to none since his playing days have ceased’.
34You also volunteer for the St Albans Football Club. The president of the club, Mr James Perkin, has known you for close to 30 years and states that while you have made some poor decisions in your life, you are a fantastic father. You have also done some amazing work around the club and volunteered your time to help out the juniors and also the disadvantaged and disabled football team.
35Consistent with these references, your wife states that you no longer associate with your previous drug using friends and you’re well supported by childhood friends from your local football club.
36It is clear from the references that you have a very positive and supportive network of friends and family. Your aunt, Ms Geraldine Frain, provides a reference where she speaks of your character. She also mentions that she has a 32 year old severely autistic and intellectually disabled son towards whom you have displayed a caring and loving affection. Ms Erin Guerra has known you for more than 16 years and you’re the godfather to her young son. She’s seen you go through ups and downs and describes you as deeply regretful for your unacceptable behaviour and as showing enthusiasm towards doing right.
37Mr Bradley Attard has known you for over 20 years. You are keen to work and over the last 12 months you have worked for his plastering business when he’s needed you. He describes you as ‘punctual, enthusiastic, hardworking’ and as taking pride in whatever job you’re assigned. He has seen a dramatic, positive change in you. You are keen to put your past behind and be the best version of yourself for your wife, children and family and friends. Your uncle, Mr Timothy Frain, also indicates that recently you have project managed maintenance and renovation works on his home. You managed and oversaw the work, purchased materials, engaged tradespeople and did work yourself. He describes you as ‘reliable, honest and trustworthy’. Your good friend Mr Sean Abela is the managing director of Complete Workgroup and states that he intends to employ you as a full time worker for his company when you are physically and mentally ready to step back into the workforce. He states, ‘we will be honoured to have him as part of our team’.
38On the material before me, I consider the delay in this matter weighs heavily in the sentencing synthesis. Since your release from custody, you have taken positive and constructive steps. I consider this also reflects your ongoing sense of remorse and regret for your offending.
Time in custody
39You were released from custody on bail on 11 June 2020 and spent 21 days on remand.
40I take into account that you served this remand period during a time when the prison system was effected by the COVID-19 pandemic and the conditions in custody were more onerous. I also take into account that the effect of the pandemic for prisons are currently ongoing and fluid.
Prospects of rehabilitation
41I accept that your prospects of rehabilitation are reasonable and that you have a number of protective factors in your favour. I have already canvassed many of these factors. Your family and friends are now well aware of your offending and the extent of your previous addiction. You have pro-social networks through your friendship groups and sporting clubs. You have supportive parents and a very supportive wife. Your young children, who rely on you, provide ongoing motivation. You are capable of meaningfully and actively engaging in treatment. Ms Copperwaite states that you have attended every medical and psychological appointment and you have exhibited shame and regret for the impact on your wife and family. You have also not sought to shift any blame for your actions. She referred you to a psychiatrist for further treatment and you’ve had your first appointment and are now assessing your treatment options.
42Since 2020 you have not breached any of your bail conditions. I note that one of the conditions prevented you from living with your wife and children for many months.
43You have aspirations to work again in your own business and to participate and contribute financially in the family unit.
44All these factors are favourable. However, your offending is serious, you do have a relevant prior criminal history and your addiction has been a long term and chronic one. Corrections recently assessed you as a ‘medium’ risk of re-offending. Clearly, your rehabilitation depends on you remaining drug free and continuing to engage in treatment and accessing your support network.
Sentencing principles
45The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. The community expects that the courts will unequivocally denounce and punish this type of offending. As your Counsel conceded, offending of this type ordinarily attracts a lengthy prison sentence.
46I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. I have also had regard to the current sentencing practices for trafficking.
47General and specific deterrence are prominent considerations here. However, given your progress and rehabilitation over the last couple of years, I am mindful to not allow the punitive and deterrent aspects of the sentencing process potentially destroy or impede the results of your rehabilitation.
48There was no dispute between the parties that a term of imprisonment is warranted, given the seriousness of the offending. The dispute centred around whether you should be required to serve additional time beyond the 21 days that you have already served. Your Counsel submits that, given the delay and your demonstrated ongoing rehabilitation, it’s not outside of the range to have you sentenced to a lengthy CCO. The prosecution submit that in light of the seriousness of the offending and your relevant prior criminal history you should be required to serve a further term of imprisonment beyond your pre-sentence detention.
49I had you assessed for a CCO and you were assessed as suitable. During the assessment you expressed considerable remorse and insight regarding your behaviour, identifying the potential harm on the wider community.
50I have given very close consideration to whether a combined sentence, with no further term of imprisonment to serve, can reflect and achieve all sentencing purposes in your case. I have been guided by the Court of Appeal in Boulton v The Queen[3], where the Court stated:
Even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment if coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending directed at rehabilitative purposes.
[3] Boulton v The Queen [2014] VSCA 342.
51I have ultimately concluded that it is not necessary to have you serve any additional prison time. In your case, a suitably structured CCO can provide substantial punishment and specific and general deterrence. The CCO component is capable of being very punitive but will also allow you to continue in your substantial rehabilitative efforts, which ultimately best serves and protects the community. I say this though Mr McKenzie, should you reappear before the Courts again, I would consider it highly unlikely that you would again be given this opportunity.
Sentence
52You are sentenced as follows –
53In relation to Charge 1, trafficking drug of dependence, Charge 2, possession of drug of dependence and the summary charge of proceed of crime, you are convicted and sentenced to a term of 21 days’ imprisonment and a two year CCO with the following conditions.
54There are core conditions that attach to the order you understand. The additional conditions will include supervision, treatment and rehabilitation for drugs, treatment and rehabilitation for mental health. I have not included judicial monitoring or programs, though I had considered them. Corrections ultimately did not endorse them and while ultimately it is a matter for me, I have been guided by their recommendations. I also require you to perform 180 hours of community work. I will offset 120 hours against treatment, which means they can be attributed to treatment and rehabilitation. Do you understand?
55OFFENDER: Yep.
56HER HONOUR: On the charge of possessing prohibited weapon, that is the sword on the wall, I am going to convict you and fine you $200 in relation to that matter, taking into account the circumstances around it.
57Pursuant to s18 of the Sentencing Act I declare that you have served 21 days in pre-sentence detention.
58Pursuant to s6AAA I declare that but for your plea of guilty I would have sentenced you to a period of some ten months’ imprisonment and a lengthy community corrections order.
59HER HONOUR: I will also make the disposal and forfeiture order in the terms sought.
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