Director of Public Prosecutions v McKay

[2015] VCC 1442

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-00314

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANON MCKAY

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 to 17 September 2015 (Trial); 24 September 2015 (Plea)
DATE OF SENTENCE:	9 October 2015
CASE MAY BE CITED AS:	DPP v McKay
MEDIUM NEUTRAL CITATION:	[2015] VCC 1442

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Trial – By jury verdict guilty of three charges of importing a marketable quantity of a border-controlled drug, namely cocaine - Importation for personal use alone rejected by jury – Lack of unqualified remorse

Legislation Cited:     Commonwealth Crimes Act (1914)

Cases Cited:DPP (Cth) v Alfartose [2015] VCC 913; DPP v Pham [2014] VSCA 204; Hili v The Queen (2010) 242 CLR 520

Sentence:Total Effective Sentence 5 years’ imprisonment to be released after serving 2 years and 6 months’ imprisonment upon entering into a recognisance in the sum of $5,000.00 to be of good behaviour for 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Sheridan-Smith	Commonwealth Director of Public Prosecutions
For the Accused	Mr G. Davis (Trial/Plea) Ms E. Metcalfe (Sentence)	Chester Metcalfe Lawyers

HER HONOUR:

1Chanon Philip McKay, following a trial, you were found guilty of three charges of importing a marketable quantity of a border controlled drug, which carries a maximum term of imprisonment of 25 years.  The maximum penalty reflects the seriousness with which Parliament regards this offence.

2You admitted that the three parcels containing cocaine, which were the subject of the charges, were imported by you but you raised the defence that each of the quantities of cocaine were exclusively for your personal use and that in each case you had no intention to sell, exchange or barter any of the cocaine that you imported.  The jury were not satisfied on the balance of probabilities that this was the case.

3I sentence you on the basis of the following facts, consistent with the jury’s verdict:

4On 13 March 2011, Australian Customs in Sydney received a parcel sent through an express mail service from Oaxaca, Mexico addressed to an Anna Braddock of 65 San Remo Parade, San Remo, with the sender’s details being Angel Perez Aernandez, with an address in Mexico which is set out in paragraph 10 of the notice of agreed facts.  Amongst other items in the parcel were two jars of Ponds’ face cream, each of which turned out to be secreting two large pellets of compressed powder wrapped up within condoms.  Upon analysis, a mixture of cocaine and cutting agents of 71.5 grams was found, containing a total of 13 grams of pure cocaine.

5The basis for Charge 2 is that on 23 May 2011 members of the Australian Federal Police seized a parcel from the Cowes Post Office with the same address details for the sender and addressee.  The parcel contained four containers of Ponds’ face cream, as well as other items referred to at paragraph 14 of the notice of agreed facts.  Two of the jars were found to have secreted in them an off-white powder or paste.  When analysed, these substances contained a mixture of cocaine and cutting agents weighing 103.4 grams gross, with a total of 62.1 grams of pure cocaine.

6The basis for Charge 3 is that on 27 May 2011, Customs in Sydney intercepted the final consignment of cocaine which was contained in a parcel with the same details for the sender and addressee as the other parcels.  This parcel contained five jars of Ponds’ face cream plus other sundry items referred to in paragraph 17 of the notice of agreed facts.  Two of the jars contained an off-white powder or paste, which contained  63.5 grams in total, and when further analysed a total of 43.1 grams of pure cocaine was found.

7There were eight other consignments that the prosecution relied on as context evidence and in a bid to rebut your defence of exclusive personal use.  You admitted in the notice of agreed facts that each of these contained a quantity of cocaine, although you took issue with one of the parcels containing cocaine when you gave evidence.  However, you also gave evidence that the nature of your relationship with the person sending you these parcels related to cocaine supply, such that I am satisfied, if necessary, beyond reasonable doubt that each of the parcels did contain a quantity of cocaine.  I do not sentence you on the basis of these other transactions as they are not the subject of charges.  However, I sentence you on the basis that the three parcels which were intercepted were not on their own but were imported by you in the context of an ongoing arrangement with your supplier in Mexico.

8By way of background, when you committed these offences, you were working at the desalination plant as a steel fixer and builder and had some supervisory duties.

9On 19 December 2010 you had travelled to Mexico.  The Crown accepted, and I sentence you on the basis, that the purpose of this trip was to have a holiday.  You returned to Australia on 11 January 2011.  It was also accepted by the prosecution, and I sentence you on the basis, that whilst you were in Mexico you used cocaine frequently and you developed an addiction to the drug.  You met a person to whom you referred in your evidence as ‘Kenny’ and it was he who sold the cocaine to you.

10It is evident from the timing of the first payment, which was sent to Mexico, that you had decided to import cocaine by the time that you arrived back in Australia.  It was submitted by the prosecution that while you initially imported the cocaine for your personal use, the sums of money coming into your bank account and being sent to Mexico by the end of January indicated that by this time you were importing cocaine to feed your addiction and also to sell.  Indeed, the prosecutor submitted to the jury that you may well have been engaging in this conduct in order to fund your own drug habit.

11Whether it is the case that you were trafficking cocaine by the end of January, or at some stage thereafter, it is clear that by the time you imported the three parcels containing cocaine, which are the subject of the charges, part of the quantity in each case was to be on-sold.  It is not possible to say how much was to be kept and how much was to be sold in each instance, or whether the cocaine to be sold was to be sold wholesale or at street level.  If the latter, this would have involved further cutting down, insofar as Charges 2 and 3 are concerned, because of the high degree of purity involved.

12It is not possible to relate the large sums of money coming in and out of your bank account to a particular charge.  However, at the end of the day, I sentence you on the basis that at least some of the large sums coming into your account, which were not referable to your legitimate income, were the proceeds of selling cocaine.  Your explanation that all of these sums were loans or else for work you had done for others rang rather hollow, in the absence of supporting evidence and in circumstances where the jury has rejected your assertion that all of the cocaine was only for your own consumption.

13I was told that if the whole 118.2 grams of pure cocaine that was seized by Customs or police, (the total that is the subject of the charges), if that quantity was sold on a wholesale basis in 2010-2011, then the potential proceeds from this would have been $84,000 if sold at $12,000 per ounce at 60 per cent purity.  If it was to be sold at street level then its potential value would have been $157,400 if sold at $400 per gram at 30% purity.  However, I note that the first charge involved a purity content of 16.1% to 26.2%.  Further, because the prosecution conceded that you may well have had a significant drug addiction which you were feeding at the time, I cannot sentence you on the basis that the entirety of each of these quantities was to be sold.  Therefore, I have factored this in, as best I can, when considering the figures to which I have just referred.

14The total quantity of cocaine which you imported, and which is the subject of the charges, is 59 times the marketable quantity threshold of two grams.  However, it was conceded by the prosecution that the quantity is at the lower end of the scale, insofar as marketable quantities are concerned.  This must be so, in view of the fact that the range of quantities caught by this offence is between two grams and two kilograms.

15In assessing your moral culpability, it is relevant that the prosecution accepted that you were importing cocaine for a dual purpose - that is, to sell and in order to fund your own habit.  These matters are not mitigatory but your moral culpability would have been higher if you were simply importing in order to traffic to others for pure profit, whilst not being addicted yourself.

16In sentencing you I have also had regard to your role in the offending.  You were essentially a sole operator, importing cocaine for yourself and to sell to others.

17Whilst you went to some effort to cover your tracks, using a false name for the addressee of the parcels, and lying to the police as to the identity of the recipient, you used your own identification to collect the parcels, as well as your own residential address.  It may be that you became somewhat emboldened as time went on and eight packages came through to you undetected by authorities.  However, your offending was relatively unsophisticated overall, and it was just a matter of time before you would be caught.

18I also take into account that you lived in fairly humble circumstances at the time of the offending and that there was no sign of enrichment, other than large cash sums coming into your bank account from time to time; but these sums were then sent to Mexico for cocaine, and you did not have a large bank balance when police caught up with you.  According to you, you were living the ‘high life’ with others but this was a lifestyle which was funded or provided by others in your friendship group.

19However, allowing for all of these matters, your offending is still most serious and must be met with a punishment which is adequate in all of the circumstances.  Strong weight must be given to general deterrence in a bid to deter others who are tempted to behave as you have.  The High Court and Courts of Appeal throughout Australia have made it clear that in offending of this type, general deterrence is a primary consideration and that in almost every case stern punishment is warranted.  Drugs are a scourge on our community and their importation can be difficult to detect.  Those who are interested in importing drugs should know that those who do so will be met with strong sanction.

20You have some prior court appearances which are somewhat dated and are of fairly limited relevance.

21On 16 April 2003, in the Magistrates’ Court in South Australia, you were dealt with for one charge of estreatment of bail and $500 was ‘estreated’.

22On 5 June 2003, at the Mt Gambier Magistrates’ Court, you were dealt with for driving under the influence and fined $700.

23On 7 March 2006, at the Warrnambool Magistrates’ Court, you were dealt with for trafficking a commercial quantity of a priority species and using abalone equipment to exceed the catch limit and you were fined $4,000.  I was told by your counsel that this matter involved you and a friend catching abalone in excess of a permissible amount.

24As I have said, these matters are dated and are of limited relevance.  I accept that apart from the offences before me, and these prior matters, you are of otherwise good character, which is attested to in the character references tendered on your behalf.  These also attest to your strong work ethic and valuable skills in your field of expertise as a steel fixer.

25I take into account the delay in this matter which was largely not attributable to you.  Although I take the view that the case against you was a fairly strong one, and that you could have ended the proceedings far sooner by pleading guilty to the charges, you were entitled to plead not guilty and the matter should have been finalised sooner than this.  This has had two impacts.  

26The first is that you had the matter hanging over your head for a significant period with the anxiety of uncertainty as to your fate.  To some extent you have had to put your life on hold, turning down some job offers and not being able to contemplate long-term relationships.  On the other hand, in the intervening period, you have abided by bail conditions which have been fairly stringent.  At one stage you were required to report to police three days a week.  Then this was reduced to two days a week.  You have had to vary bail to accommodate your work commitments.  You have not committed any further offences and you have continued to work, with your current employer more than happy to have you back.  These matters are in your favour insofar as your rehabilitation is concerned.

27You maintain your stance of not guilty, which is your entitlement.  That is, that you did not import the cocaine with the intention of selling some of it.  This means that you are not remorseful for your conduct, albeit that I accept that you may well be sorry that you were caught.  While you have been prepared to take responsibility for importing the cocaine, this has not extended to taking responsibility for the entire motivation in doing so.  Your lack of unqualified remorse is a matter which counts against your prospects of rehabilitation.

28I take into account your background:

29You are 38-years-old and a steel fixer by trade.  Your parents separated some time ago.  You left school half way through Year 11 and commenced working for your uncle in the construction industry.  You have a strong work ethic and seem to have had no difficulty obtaining work because of your skills.  You have worked as a steel fixer on major projects in Victoria, including the desalination plant which is where you worked at the time of these offences.  You have also supervised the work of others at the desalination plant and of sub-contractors on other major projects.

30Your father, who attended court every day for the trial, is a retired merchant seaman and was not much of a presence in your life as you were growing up.  However, he is most supportive of you now, as is a former employer, who has provided a glowing character reference and wants you to return to work for him as soon as you are released.  Your mother lives in Tasmania and your father lives in Portland.  You have no dependents and you are not in a relationship, although you have been in relationships in the past.

31I also take into account that you facilitated justice to a degree in making some significant admissions in the extensive notice of agreed facts, which reduced the need for a number of witnesses to be called by the prosecution.  No serious issue was taken with the few witnesses who were called by the prosecution.  Therefore, although you are not entitled to a discount that would accompany a plea of guilty, I do make some allowance in your favour for facilitating justice to the extent that you have, which has meant that fewer witnesses were put to the time and trouble of giving evidence and less time and expense associated with court proceedings.

32This will be your first time in gaol which will, no doubt, be a salutary experience for you and I have taken this into account.  I was told by your counsel that you are finding the experience boring thus far and are keen to take part in some work, perhaps in a country prison, to make your time more bearable.

33I am told that you are no longer addicted to cocaine and that this has been the case since your arrest in May 2011.

34Taking into account your cessation of drug use, your strong work ethic, your very limited and aged criminal history, the supports you have in the community and your lack of subsequent offending over a lengthy period, but also bearing in mind the offending before me and lack of unqualified remorse, I find that your prospects of rehabilitation are fairly good and I need only place fairly minimal weight on specific deterrence.

35It was acknowledged by Mr Davis on your behalf that a term of immediate imprisonment was warranted but he said that it would be in your best interests to be sentenced by way of a recognisance release order, rather that a head sentence with a non-parole period, so that you would have more certainty as to your release date and could work toward this.  He referred me to a sentence of this court, DPP (Cth) v Alfartose [2015] VCC 913 in a bid to assist me with sentencing practice. While I have had regard to that sentence it is but one case, and there were features of it which materially differed from yours such as the offender’s plea of guilty, his poor mental health and family hardship issues.

36Ms Sheridan-Smith submitted that an immediate term of imprisonment was warranted but that an aggregate term of imprisonment could be imposed.  She provided me with a number of cases and two tables with a number of sentences in respect of drug importation cases with comparable marketable quantities.  Having done so, the learned prosecutor conceded that most of the cases in the tables were not of great assistance, and pointed to a few which might be of some guidance in sentencing practice, factoring in the differences that these presented.  The principal difference being that the offender pleaded guilty in each of these matters.  

37The learned prosecutor also submitted that sentencing practice ought be gleaned from comparable cases across Australia, contrary to the Victorian Court of Appeal decision of DPP v Pham [2014] VSCA 204, which is the subject of appeal in the High Court. It was submitted that in view of what the High Court said in Hili v The Queen (2010) 242 CLR 520 at 538, and concessions made on behalf of the respondent in the High Court in the matter of Pham, I ought have regard to sentences for comparable cases in other states as well as in Victoria.

38I was helpfully provided with a transcript of the argument in the High Court.  Unfortunately, it is not known when the court will hand down their judgement but from what was said in argument it appears that the position in Hili will be maintained, and that sentencing practice is something that one ought look to on a national basis rather than being confined to Victoria.  Having said this, it is but one factor in the sentencing process, although bearing in mind that consistency in sentencing is an overall objective in cases of ‘like kind’, in the material sense.  

39Having said all of this, there are few cases that reflect sentencing practice on a national basis in respect of offending such as yours, in all of the material circumstances.  However, some of the cases in the tables have provided me with some guidance in this regard.

40I have arrived at a sentence which, in my view, gives appropriate weight to all relevant sentencing principles, given the particular circumstances of this case.

41Would you please stand up, Mr McKay.

42     You are convicted in respect of each of the charges and you are sentenced to an aggregate term of five years’ imprisonment, which is to commence today.  However, I direct that you be released after serving two and a half years' imprisonment, upon you entering into a recognisance in the sum of $5,000 to be of good behaviour for a period of three years.  I have imposed this sentence because of the seriousness of the offences and the weight that I must give to all relevant sentencing factors.

43     If you commit a further offence in breach of the recognisance to be of good behaviour during the period of three years after your release from gaol, then unless you can show a reasonable excuse for committing a further offence or offences, you will have to pay the sum of $5,000 to the court and serve a further term of two and a half years' imprisonment immediately.  I should also tell you that you, or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with s.20AA of the Commonwealth Crimes Act (1914). 

44I have sentenced you in the way that I have because of the weight that I have attributed to all relevant sentencing factors and I have determined that the minimal period required in respect of your imprisonment is two and half years.

45I declare that you have already served 23 days by way of pre-sentence detention.

46I will have your Counsel approach the Dock for you to sign the recognisance document.  Is there anything arising?

47MS SHERIDAN:  6AAA, I think Your Honour.

48HER HONOUR:  Yes. 

49MS SHERIDAN:  If you could turn your mind to that?

50HER HONOUR:  Hang on.  It's not 6AAA because he pleaded not guilty.

51MS SHERIDAN:  Sorry.  Of course, sorry.  I don't know what I'm thinking.

52HER HONOUR:  That's all right .

53MS SHERIDAN:  I apologise.  Nothing else, Your Honour.

54HER HONOUR:  Take a seat, Mr McKay, for a moment.  Anything further?

55MS SHERIDAN:  No, Your Honour. 

56HER HONOUR:  Thank you.  Could you please remove Mr McKay. 

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