Director of Public Prosecutions v Mcintier
[2022] VCC 1156
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01448
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN MCINTIER |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2022 | |
DATE OF SENTENCE: | 24 June 2022 | |
CASE MAY BE CITED AS: | DPP v Mcintier | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1156 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Saunders | |
| For the Accused | Mr K. McDonald |
HIS HONOUR:
1 Sean Mcintier, you have pleaded guilty to one charge of importing a marketable quantity of a border-controlled drug, namely ketamine, contrary to s307.2(1) of the Criminal Code (Commonwealth), three charges of trafficking in a drug of dependence, being ketamine, LSD, and MDMA contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Victoria) and a further charge of dealing with proceeds of crime worth $1,000 or more contrary to s407.1 of the Criminal Code (Commonwealth).
2 The maximum penalties for each of the offences are 25 years for Charge 1, 15 years for Charges 2 to 4 and five years' imprisonment for Charge 5.
Circumstances of the offending
3 The full circumstances of the offences were set out in the amended prosecution opening dated 6 May 2022. The amended opening was read in open court on the sentence indication hearing and I incorporate it by reference.
4 In brief outline, on 23 October 2020 a parcel arrived at the international gateway mail facility in Sydney from India. It was addressed to you at an address in Heidelberg West where you were then living. It was deconstructed and found to contain a blanket, herbs and a container labelled 'Vico'. Within the container were seven small plastic bags containing a white substance subsequently found to be ketamine. The total of the bags was approximately 142 grams, with a purity of 71 to 91 per cent and a total pure weight between 103 and 132 grams.
5 The parcel was transferred to Victoria Police and on 8 December 2020 police executed a search warrant at the property in Heidelberg West. You were there with your two housemates. Within the property police found numerous items which were indicia of drug dealing as set out in paragraph 20 of the opening. These included a number of different pills, Ziploc bags, cash, a mobile phone, computer hard drive, a brown briefcase containing $5,500 cash. A number of tablets and capsules and Ziploc bags contained crystalline substances were also found. The total cash found was $5,690 which is the subject of Charge 5.
6 The drugs seized at your residence were found to be 38.9 grams of ketamine, being approximately 18 grams pure. There was also 97.6 grams net of MDMA, being 31 grams pure. There was a total of 950 milligrams net of LSD, being less than 50 milligrams pure. Enquiries subsequently found that seven previously seized importations of border-controlled drugs, including ketamine, LSD, MDMA, and amphetamine had been addressed to you at various addresses that you were residing at, or associated with, over the period January 2014 to March 2016.
7 Police seized the phone at the premises and extracted from it numerous messages using an encrypted app. You had provided the relevant password or access to the phone. There were numerous conversations between you and unknown persons about exchanging, procuring, selling and offering to sell drugs of various types.
8 You participated in a record of interview on 8 December 2020. You confirmed that you had been residing at, or associated with, the various addresses to which parcels that were intercepted were sought to be sent. You declined to comment about previous parcels or letters that had been seized. You denied organising the parcel that arrived at the gateway on 23 October 2020. You confirmed that you were on government benefits and make limited money from making music. You said you had a couple of thousand dollars in the bank and a small amount of cryptocurrency.
Assessing the seriousness of the offending
9 By your plea you have admitted responsibility for the package seized on 23 October 2020. Reasoning back from the drug paraphernalia seized at your address in December, and the earlier intercepted attempts at importation of small quantities of drugs, it is clear that you bear high moral culpability for this offending. You were engaged in selling drugs and the contents of the package were designed to be available to you for you to sell on the prohibited drug market.
10 The amount seized represents approximately 30 times a marketable quantity of that drug, ketamine. It represents between 10.3 and 13.2 per cent of a commercial quantity. There was also an additional smaller amount of ketamine seized at your address which is the subject of the trafficking charge.
11 While it was submitted that there was little evidence of betterment found at your address, it is clear from the contents of the mobile phone that you were engaged in a vigorous multidrug trafficking operation. The clear inference is that you were to make money from this attempted importation. There is no suggestion of other persons being involved in the importation so you must be regarded as the principal and the importation was for profit. These are both matters of aggravation.
12 The importation offence is a serious example of a successful attempt to illegally import drugs, although you did not receive them. Although, as conceded by the learned prosecutor, larger amounts have also been the subject of similar charges involving drugs in the mail.
13 Turning to the State trafficking offences, in relation to ketamine, Charge 2, the amount seized was well above the amount that could be said for personal use. The amount of LSD, Charge 3, is six times the trafficable quantity of a mixed amount. In relation to MDMA, Charge 4, on a gross basis is close to a commercial quantity.
14 As submitted by the learned prosecutor, you are to be regarded as close to a middle level drug trafficker above a street level dealer. This is also confirmed by the $5,690 cash found at your premises and the subject of the proceeds of crime Charge 5.
Prior convictions
15 You admitted a limited criminal record. You are aged 30. You were before the Magistrates' Court on 15 December 2017 where you were placed on an adjourned undertaking for 12 months for fraudulent use of identification documents under the Road Safety Act and failing to give notice of a transfer.
16 On 17 December 2018 you were fined without conviction on two charges of possessing cannabis and possessing ecstasy. Your prior drug record is consistent with the submission of your counsel on the plea that you were a drug user as well as a drug trafficker. Otherwise you can be seen as essentially a first-time serious offender well into your adulthood.
Subjective matters
17 I turn to your personal circumstances which are set out in the plea submission filed by your counsel and which I incorporate by reference. You are aged 30 and were born and brought up in the west coast of the USA. Your parents separated when you were around 10 years old and your mother lives in Phoenix, Arizona. Your father previously worked for the US Postal Services. You have a half sister aged 17. You have a stepbrother you have no contact with.
18 You and your mother moved to San Diego in 1994 and you were brought up in that area. Your mother moved to Australia in 2002 while you lived with your father in Sacramento until 2005 and then joined your mother in Australia and obtained permanent residency. In 2007 you returned to the USA to be with your father and stepmother against the wishes of your mother. You and your stepmother did not get on and you then returned to Australia.
19 Your education was disrupted in the USA. You were diagnosed with ADHD and Asperger's. Medication was prescribed. Your father was a strong disciplinarian and you were rebellious. You were introduced to cannabis by your father. You suffered behavioural issues and until placed in a specialist school were unable to thrive. You were able to complete your secondary schooling.
20 In Australia in 2013 you worked on farms and in packing sheds. You started to become involved in DJ-ing. You also produced a record apparently. You also worked in casual jobs with Coles and in sales, as well as being a courier. At the time of the arrest you were receiving unemployment benefit, but you had previously been working as a courier prior to losing your job during the pandemic.
Prospects of rehabilitation
21 The learned prosecutor submitted that your prospects of rehabilitation should be regarded with caution.
22 On the plea I heard evidence from your auntie, Laurie Peffley, by video from the USA. She has been closely involved in your life since you were aged three and you have been in regular contact with her since being remanded in custody and earlier. She indicates that you have worked in a number of areas as a volunteer in your youth. She states that you are remorseful for your conduct and she is of the opinion that you have seen the error of your ways and cannot understand how you got into the drug scene. She is suffering very serious health issues and is looking forward to your support upon your release.
23 On the plea your counsel tendered an impressive number of certificates for courses that you have undertaken whilst in custody, as well as a letter from the Buddhist chaplain, and one each from your mother and your auntie, Ms Peffley. Your willingness to undertake courses whilst on remand, combined with the oral evidence from Ms Peffley as to your remorse and self-awareness, indicates that in my assessment your prospects of rehabilitation should be regarded as reasonable given your age, your family support and that this is your first lengthy term of imprisonment.
Other matters in mitigation
24 Your counsel emphasised your plea of guilty. He submitted that a plea offer in relation to the State offences was made very early. The matter, however, was the subject of a committal and you made two unsuccessful bail applications. You are entitled to the utilitarian benefit of the plea in relation to all these offences.
25 The plea in relation to the importation offence was, however, late. I regard the prosecution case as strong in relation to that offence contrary to your counsel's submission. Notwithstanding that your plea in relation to the federal importation offence is late, I do regard it as evidence of remorse and overall I am satisfied that you are contrite for your offending.
26 I have had regard to your age. You are not a youthful offender but you are a relatively young man and this is relevant to your prospects of rehabilitation and the need to avoid a crushing sentence.
27 In sentencing you I have also had regard to your period on remand since you were arrested on 8 December 2020. The entire period has been during the pandemic. Programs and movements have been limited, visits have been limited and you have had the uncertainty of these unresolved charges hanging over you for the last nearly 19 months. That is a significant matter.
28 As submitted by your counsel you are also entitled to the benefit of a perceptible amelioration in sentence in entering a plea when the criminal justice system is under the strain of COVID. You are also entitled to the utilitarian benefit of facilitating the course of justice by your plea.
Comparable cases
29 The learned prosecutor filed a list of five cases that the court could consider as comparable for this offending. Further, as submitted by the learned prosecutor, the court is required to have regard to cases in other jurisdictions when dealing with a federal offence. In addition, your counsel referred to a number of cases after the court referred the parties to the New South Wales Court of Criminal Appeal case of Patel v The Queen [2022] NSWCCA 93. Your counsel also tendered a sentencing snapshot for trafficking in non-commercial quantities of drugs, as well as a bundle of extracts from the Commonwealth sentencing database.
30 I have considered all the cases as providing something of a signpost or guidepost for sentencing on the most serious charge. Although the types of drugs vary, it is clear that sentences increase in cases involving higher amounts of drugs, more than one count, pleas of not guilty and prior antecedents. The subjective circumstances of the offenders, including their ages and motivations, also vary considerably.
31 Sentences for comparable cases interstate and also in this State, however, must be approached with caution given that, as I have already noted, you are to be sentenced after a very significant period upon remand during COVID and are to be accorded an augmented mitigatory effect upon a plea under the Court of Appeal decision in Worboyes v The Queen [2021] VSCA 169.
32 In sentencing you, as noted by the learned prosecutor, matters of prior good character carry less weight and considerations of general deterrence and denunciation are to the fore. The learned prosecutor submitted, while the importation offence is the most serious, some modest cumulation should be provided for the State trafficking offences. Your counsel submitted that any sentence should allow for your immediate release. I have rejected that submission. The offending is far too serious.
Sentencing submissions
33 The learned prosecutor in a comprehensive submission emphasised considerations of general deterrence and the need to identify the role of an offender in the drug enterprise. I have identified you as the principal here. I am also required to have regard to the matters set out in s16A of the Crimes Act 1914 (Cth), including that imprisonment is to be a sanction of last resort. The offending here is of such seriousness that there must be a term of imprisonment.
34 Further, having regard to the seriousness, I regard a period of parole eligibility as appropriate rather than release upon a recognisance release order.
35 In this case in sentencing it is also important to recognise that these types of offences are difficult to detect. Drug importation and dealing is an economic crime and upon apprehension persons engaged in such ventures must expect heavy sentences, both for the purposes of specific deterrence and to send a signal to others who might be minded to commit such crimes. Thus, considerations of general deterrence and denunciation are to the fore.
36 I have had regard to the case in particular of Patel where a large number of cases are digested and see that case is of considerable assistance as a comparator. In sentencing here I must also have regard to considerations of totality and proportionality.
37 Your offending was something of a course of conduct which is relevant to the way that I propose to structure the sentence. I have taken into account all of the subjective matters put on your behalf, including your plea of guilty, your remorse and what I regard as your reasonable prospects of rehabilitation. A sentence of imprisonment will weigh more heavily on you given your separation from family in the USA, particularly your auntie with whom you are close who is now facing a grave medical condition.
38 I have already indicated that I have taken into account your period on remand in the COVID environment. Into the future conditions in prison have yet to return to normal and this is a factor to be taken into account. I regard it as appropriate to impose a slightly longer period where you will be eligible for release upon parole having regard to your age, the efforts that you have undertaken whilst in custody and my assessment of your prospects of rehabilitation.
39 The three State drug trafficking charges involved trafficking on a single day. While it is clear from the prosecution opening that you were actively engaged in trafficking before that time, the three charges constitute a course of conduct in these circumstances and in these circumstances I regard it as appropriate to impose an aggregate sentence. I accept the learned prosecutor's submission that there should be some modest cumulation for the trafficking sentences on the importation sentence.
40 Having considered all the various submissions I sentence you as follows. Could you please stand. On Charge 1 you are sentenced to three and a half years' imprisonment; on Charges 2, 3 and 4 you are sentenced to an aggregate sentence of two years' imprisonment; on Charge 5 you are sentenced to six months' imprisonment. I direct that the aggregate sentence on Charges 2, 3 and 4 and the sentence on Charge 5 commence this day. I direct that the sentence on Charge 1 commence nine months from this day. The total effective sentence is, therefore, four years and three months.
41 I order that you be eligible for release on parole after serving two years and four months.
42 I declare that you have served 563 days pre-sentence detention.
43 I declare that had you not pleaded guilty I would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of four years and eight months.
44 I must explain the sentence to you. I have sentenced you for five different offences. In relation to the offences of 2, 3 and 4, the drug trafficking offences under the State legislation, I have sentenced you to an aggregate sentence of two years' imprisonment. On the more serious offence of the importation, the Commonwealth offence, I have sentenced you to three and a half years' imprisonment. On the sentence of possession of the proceeds of crime I have sentenced you to six months' imprisonment.
45 I have directed that nine months of the two-year sentence of drug trafficking, the aggregate sentence, be served cumulatively on the three and a half year sentence imposed for the Commonwealth offence of drug importation, making a total effective sentence of four years and three months, and the sentence on Charge 5 is concurrent with the drug trafficking sentence.
46 I have ordered that you be eligible for release upon parole after you have served two years and four months' imprisonment and I have ordered that the 563 days you have already served be deducted. And I have declared that if you had not pleaded guilty I would have imposed a total effective sentence of seven years' imprisonment, with a non-parole period of four years and eight months.
47 That is all I want to say. I want to acknowledge the assistance and comprehensive submissions by your counsel Mr McDonald and by the learned prosecutor Mr Saunders. Mr Saunders, are there any matters I haven't addressed that I need to address?
48 MR SAUNDERS: I don't believe so, Your Honour.
49 HIS HONOUR: Are there any forfeiture orders or anything like that?
50 MR SAUNDERS: Going through that, Your Honour, I would assume that there probably are forfeiture and disposal orders of the money and the drugs, but we will forward those to Your Honour. I'm assuming my learned friend
Mr McDonald can indicate, but I presume they're not opposed.
51 MR McDONALD: No, Your Honour, they're not.
52 HIS HONOUR: Yes, it's just that I haven't seen them at all, Mr Saunders, but no doubt the system will catch up.
53 MR SAUNDERS: Yes, Your Honour. One of my instructors had to leave in a relatively short period of time, or my instructor did, so there has been some (indistinct words). We will attend to it.
54 HIS HONOUR: All right. Well, I'll make the forfeiture orders or whatever other orders are sought, ancillary orders.
55 MR SAUNDERS: Thank you.
56 HIS HONOUR: All right. I want to thank all parties. And adjourn the court sine die.
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