Director of Public Prosecutions v McKenzie; Director of Public Prosecutions v Cahir
[2017] VCC 1029
•28 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01557
CR-16-01565
Indictment No. C1509999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN MCKENZIE |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL CAHIR |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 6 and 7 June 2017 | |
DATE OF SENTENCES: | 28 July 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v McKenzie; Director of Public Prosecutions v Cahir | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1029 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s71, s71AA, s71AC, s73; Crimes Act 1958, s194(2); Criminal Code (Cth), s307.1(1) Sentencing Act 1991
Cases Cited:R v Miceli (1998) 4 VR 588; R v Merrett, Piggott & Ferrari (2007) 14 VR 392; Bournev R [2011] VSCA 159; R v Piercey (1971) VR 647; Moran & Byrnes v R [1987] 31 A Crim R 248; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; R v Huang [2000] NSWCCA 238; Phuong Bich Nguyen v R; Phommalysack [2011] VSCA 32; Peng [2014] VSCA 128; RH McL v R (2000) 203 CLR 452; Gordon v R [2013] VSCA 343
Sentence: McKenzie – total effective sentence of 20 years imprisonment; non- parole period of 16 years imprisonment. Cahir – total effective sentence of 4 years imprisonment; non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D J Gray | Solicitor for the Office of Public Prosecutions |
| For Offender John McKenzie | Mr I Hayden | Ellinghaus & Lindner |
| For Offender Samuel Cahir | Mr B Johnston | Balmer & Associates |
HIS HONOUR:
1 John Conway McKenzie, on 6 June 2017, you pleaded guilty to the following offences:
Charge 1 – that you at Box Hill and divers other places in Victoria, between 11 September 2014 and 4 December 2014, trafficked in a drug of dependence, namely Lysergic Acid Diethylamide (“LSD”) in a quantity that was not less than the large commercial quantity applicable to that drug of dependence.
Trafficking in a drug of dependence – large commercial quantity - is contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of life imprisonment, and in addition to a penalty of not more than 5,000 penalty units.
Charge 2 - that you at Box Hill and divers other places in Victoria, between 11 September and 4 December 2014, trafficked in a drug of dependence, namely 3, 4-Methylenedioxy-n-Methlyamphetamine (MDMA) in a quantity that was not less than the commercial quantity applicable to that drug of dependence.
Trafficking in a drug of dependence – commercial quantity – is contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum sentence of twenty-five years’ imprisonment.
Charge 3 – that you at Box Hill and divers other places in Victoria, between 11 September and 4 December 2014, trafficked in a drug of dependence, namely N,N Dimethyltryptamine (DMT).
Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 4 – that you at Box Hill and other divers places in Victoria, between 11 September 2014 and 4 December 2014, trafficked in a drug of dependence, namely 3,4-Methylenedioxyamphetamine (MDA).
Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 5 – that you, at Box Hill and divers other places in Victoria, on 4 December 2014, trafficked in a drug of dependence, namely Cocaine.
Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 6 – that you, at Box Hill in Victoria, on 4 December 2014, trafficked in a drug of dependence, namely 4-bromo-2,5-dimethoxyphenethylamine (2C-B/Nexus).
Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981and carries a maximum penalty of fifteen years’ imprisonment.
Charge 7 – that you, at Box Hill in Victoria, on 4 December 2014, had in your possession drugs of dependence, namely tetrahydrocannabinol (“THC”), Ketamine, 3,4-methylenedioxy-N-ethyl-amphetamine (“MDEA”), Methylamphetamine, 3,4-methylenedioxypyrovalerone (“MDPB”), 2,5-Dimethoxy-4-Iodophenethylamine (“2CI”), Methylone, (1-2-morpholine-4-ylethy) Indol-3-YL-Naphtalen-1-Ylmethaenone (“GWH-200”), Napthalen-1-YL-(1-Butylindol-3-YL) Methanone (“JWH-073”), 5-Methoxy-Ketaline,M-Dimethlyryptamie (“5-DMT”) and Mescaline.
Possession of a drug of dependence is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 30 penalty units or one year’s imprisonment, or both.
Charge 8 – that you, at Box Hill in Victoria, on 4 December 2014, dealt with $176,950, which was proceeds of crime, knowing that it was proceeds of crime.
Knowingly dealing with proceeds of crime is contrary to s.194(2) of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 9 – the Director of Public Prosecutions for the Commonwealth of Australia charges that you, in Melbourne in Victoria on or about 5 December 2014, did import a substance, the substance being a border-controlled drug, namely 3,4-Methylenedioxy-n-Methylamphetamine (MDMA) and the quantity imported being a commercial quantity.
Importing a commercial quantity of a border-controlled drug is contrary to s.307.1(1) of the Criminal Code (Cth), - Commonwealth that is - and carries a maximum penalty of life imprisonment or a fine of 7,500 penalty units, or both.
2 Samuel Vincent Cahir, on 6 June 2017, you pleaded guilty to the following offences:
Charge 10 – that you, at East Melbourne in Victoria, between 11 September 2014 and 6 January 2015, trafficked in a drug of dependence, namely 3,4-Methylenedioxy-n-Methylamphetamine (MDMA) in a quantity that was not less than the commercial quantity applicable to that drug of dependence.
Trafficking in a drug of dependence – commercial quantity – is contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 11 – that you, at East Melbourne in Victoria, on 6 January 2015, had in your possession a drug of dependence, namely Cannabis-L.
Possession of a drug of dependence is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 30 penalty units or one year’s imprisonment, or both.
Charge 12 – that you, at East Melbourne in Victoria, on 6 January 2015, had in your possession a drug of dependence, namely Mescaline.
Possession of a drug of dependence is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 30 penalty points or one year’s imprisonment, or both.
Circumstances of the offending
3 Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening for Plea” (see exhibit 1). I was informed by your respective counsel that both you, McKenzie and you, Cahir, agree to the contents of such document.
4 The important parts of the Summary of Prosecution Opening are the following:
(a)Operation SEADRAGON was an investigation which targeted an organised syndicate involved in importation of 3, 4-Methylenedioxy-n-Methlyamphetamine (MDMA) from packages sent from Germany via Australia Post and the manufacture and trafficking of MDMA and 3,4-Methylendioxy-Amphetamine (MDA) via the emerging technique using a chemical named Helional as well as the manufacturing and trafficking N,N Dimethyltryptamine (DMT), all scheduled drugs of dependence pursuant to the Drugs, Poisons and Controlled Substances Act 1981;
(b)The investigation involved telephone intercepts, optical devices as well as physical surveillance;
(c)You, McKenzie, have been identified as the syndicate leader. At the time of the offending you were fifty-five years old and resided at 25 Watts Street, Box Hill. You were self- employed and involved in managing your business “Psyclone Events”, which was primarily involved in the importing and selling of canvas tents.
At the time of offending you, Samuel Cahir, were forty-five years old and resided at 301/1 Powlett Street, East Melbourne;
(d)As I have recorded, the syndicate was involved in the importation of liquid MDMA and was successful in importing from Germany at least four wine bottles, each containing approximately 1 kilogram of mixed liquid MDMA. Once the syndicate had received the imported MDMA, it would be placed into Pyrex dishes and electric heaters and fans utilised to evaporate the excess liquid over a twenty-two to twenty-four hour period, turning the liquid into MDMA crystals with a very high purity;
(e)You, McKenzie, and a co-offender, Tristan Boyle, utilised mobile phones to communicate and often utilised guarded and coded language to conceal the operation of the syndicate. You also arranged face-to-face meetings and internet-based encrypted communication applications to minimise detection or interception of conversations by police;
(f)During the investigation it was established that you, McKenzie, were - and I will do this by dot points, first dot point:
·Renting the property located at 25 Watts Street Box Hill (I will refer to that as “the Watts Street premises”). The prosecutor tendered a booklet of photographs regarding the Watts Street premises (see Exhibit 3).
·Renting and accessing a storage unit located at National Storage at 55 Lexton Road (I shall refer to that as "the Lexton Road premises”).
·The owner of property situated at Aughaderry Road, Berrimal (I shall refer to that as “the Aughaderry Road premises”), where you frequented regularly. The prosecutor tendered two booklets of photographs of the Aughaderry Road premises (see exhibit 2).
·Had possession of keys for numerous Post Office boxes, including Post Office Box 191, Blackburn Post Office; Post Office Box 8203, Camberwell North and a further Post Office being Box 252, East Melbourne Post Office;
(g)Operation SEADRAGON utilised two Telecommunication Interception Warrants – one in relation to you, McKenzie, and one relation to your co-accused, Tristan Boyle. During the course of such intercepts of your mobile phone, McKenzie, it became clear to police that, and again dot point, first dot point:
·You were using post office boxes in associates’ details to receive imported drugs of dependence.
·You were manufacturing drugs at the Watts Street premises and the Aughaderry road premises.
·You were trafficking drugs to other syndicate members including you, Cahir, as well as to other individuals.
·You made numerous calls to individuals involving coded drug conversation with reference to the manufacturing and trafficking of drugs of dependence;
(h) During the police investigation it was established that you, Cahir, were - again, dot point:
·Renting a property located at 301/1 Powlett Street East Melbourne (“the Powlett Street premises”). The prosecutor tendered two booklets of photographs regarding the Powlett Street premises (see Exhibit 4).
·Utilising mobile phone number listed in your de facto’s name.
·Assisting McKenzie, in the trafficking and manufacture of MDMA at the Aughaderry Road premises, the Watts Street premises and the Powlett Street premises.
·Receiving money and drugs from McKenzie as payment for your assistance.
The charges regarding you McKenzie
5 Charge 1 involves the trafficking of a large commercial quantity of Lysergic Acid Diethylamide (LSD). A large commercial quantity of LSD is not less than 150 pure milligrams. This charge represents the amounts of LSD seized at the following various locations and the ongoing traffic and manufacture of the drug:
(a)On 4 December 2014, police executed a search warrant at the Watts Street premises and a subsequent search of the property located at this address was 40,531 milligrams in a total of twenty exhibits. Three of these exhibits were tested for purity and found to contain 2,542 milligrams of pure LSD;
(b)On the same date, police executed a warrant on a storage locker at the Lexton Road premises and the total amount of LSD found at that address was 43,903 milligrams in a total of twenty-eight exhibits. Five of these exhibits were tested for purity and found to contain 299 milligrams of pure LSD. Also found at the Lexton Road premises were five unsealed vials containing 25 millilitres of ergometrine, a chemical used in the manufacture of LSD;
(c)On 4 December 2014, police executed a search warrant at the Aughaderry Road premises and a subsequent search of the property located 320 milligrams of LSD. The purity was not determined;
(d)Forty-nine exhibits contained LSD, eight exhibits were tested, so the total weight of pure LSD located at the Watts Street premises and the Lexton Road premises, was at least 2,841 milligrams pure LSD.
6 Charge 2 involves the trafficking in a commercial quantity of MDMA, commonly referred to “Ecstasy”. A commercial quantity of MDMA is 100 pure grams:
(a)On 4 December 2014, police executed a search warrant at the Watts Street premises and found 413.7 grams of the mixed amount of MDMA. This was tested for purity and found that the total pure amount of MDMA was 178.6 grams. In the rear bedroom of the Watts Street premises, police located three fans set up over three Pyrex dishes, each containing a mixture of liquid and crystallised MDMA. Also located at these premises were other items used in the manufacture of MDMA, namely a piece of glassware and a round-bottomed flask which contained washings of MDMA;
(b)Also located at the Watts Street premises was packaging from a parcel marked as containing bottled liquid and delivered to you, McKenzie, from Post Office Box 8203, Camberwell North. The labels and signatures are identical to those on the package containing the two bottles of MDMA seized by police from Post Office Box 191, Blackburn Post Office (the subject of Charge 9);
(c)At the Aughaderry Road premises, police located scientific glassware that had been used in the process of manufacturing MDMA. Those items contained washings of MDMA. Police had also found at the property, 25 kilograms of microcrystalline cellulose, a pill-binding agent. Fingerprints of both you, McKenzie, and you, Cahir, were found on items recovered from the Aughaderry Road premises. Also located at the property was a shipping container containing various precursor chemicals, and glassware and scientific apparatus, including an industrial fume cupboard;
(d)During a search of the Lexton Road premises, a further 14.2 grams of MDMA was located, along with a plastic syringe which contained washings of MDMA.
The charge of trafficking a commercial quantity of MDMA against you, McKenzie, encompasses you in possession of not less than a commercial quantity of the drug, the manufacturing process of conversion of liquid to crystal, as well as the ongoing business of trafficking revealed in the telephone intercepts. It is not possible from the telephone intercepts to quantify the amount trafficked to others.
7 Charge 3 relates to trafficking in a drug of dependence - DMT, which is a psychedelic hallucinogen. A trafficable quantity of DMT is 0.5 pure grams. On 4 December 2014, police executed a warrant at the Lexton Road premises and located 78.3 grams of DMT. Upon analysis, the pure amount was established to be 74 grams pure. On 4 December 2014, police executed a search warrant at the Aughaderry Road premises at which was located scientific glassware that contained washings of DMT, indicating it had been in the manufacture of the drug. Telephone intercepts of your phone, McKenzie, revealed trafficking in DMT, however the amount cannot be quantified. The charge is also based on telephone intercepts of co-offender, Tristan Boyle, who has pleaded guilty to the same offence.
8 Charge 4 relates to the trafficking of a drug of dependence – MDA, a form of Ecstasy. A trafficable quantity of MDA is 3 grams. When police executed a search warrant at the Watts Street premises, they located 3 grams of MDA. Sassafras, which is a precursor for the manufacturing of MDA, was located at the Lexton Road premises, and this charge represents the ongoing trafficking and manufacture of that drug.
9 Charge 5 relates to the trafficking of a drug of dependence – Cocaine. A trafficable quantity of Cocaine is 3 grams. Police located 33.3 grams of Cocaine at the Watts Street premises, 2.2 grams at the Lexton Road premises and 3 grams at the Aughaderry Road premises. The total amount of cocaine located at those premises was 38.5 grams.
10 Charge 6 relates to the trafficking of a drug of dependence - 2C-B/Nexus, which is a synthetic hallucinogen. A trafficable quantity of such drug is 3 grams. A search of the Watts Street premises located 13.3 grams of 2C-B/Nexus and a smaller quantity of the drug – 0.5 grams - was found at the Lexton Road premises.
11 Charge 7 involves the possession of drugs of dependence. This is a rolled-up charge to cover drugs found at your various properties and storage locker. The drugs covered by this charge are, THC, Ketamine, MDEA, Methylamphetamine, MDPV, 2CI, Methylone, JWH-200, JWH-073, 5-DMT and Mescaline. The prosecution accept that such drugs were only for personal use.
12 Charge 8 involves you knowingly possessing proceeds of crime amounting to $176,950. A search by police at your Lexton Road premises revealed $164,950 in Australian currency and a further $12,000 was found at the Watts Street premises. It is the prosecution case that this entire amount was derived from drug trafficking and manufacturing activities.
13 Charge 9 relates to importing a commercial quantity of MDMA and is brought under the Commonwealth legislation. A search by police of Post Office Box 191 Blackburn Post Office ( which is controlled by you, McKenzie), located two port bottles containing a total of 2173.4 grams of MDMA. The bottles were sent from Germany. Examination revealed this amounted to 1,923.5 grams of pure MDMA. The commercial quantity of the border-controlled drug MDMA is 500 grams pure form of the drug.
14 Senior Sergeant Campbell McNair made the following valuations of illicit drugs located at properties owned or controlled by you, McKenzie. The valuations are based on prices in Victoria at 2014. The total value of drugs found at premises owned or established by you was estimated at between $536,514 and $1,043,011 depending on the quantity and level of purity at which it was sold.
Charges re-you, Cahir
15 Charge 10 involved you, Cahir, trafficking in a commercial quantity of MDMA. As already recorded, a commercial quantity of pure MDMA is 100 grams. On 6 January 2015, police executed a search warrant at your home address in Powlett Street, East Melbourne and located 557.5 grams of MDMA. Analysis revealed the total pure amount was 153.7 grams. At these premises, the entire bathroom and other rooms had been set up for the extraction process.
16 Your fingerprints were also found on items located at the Aughaderry Road premises and your fingerprints were also located on scientific glassware containing washings of MDMA. At McKenzie’s Watts Street premises, police also found your fingerprints on the fan switch above some dishes of MDMA. This charge is constituted by both the MDMA found at your Powlett Street premises and your involvement in manufacturing MDMA at the Watts Street and at the Aughaderry Street premises.
17 Charge 11 involves you possessing a drug of dependence – Cannabis, which was located at your Powlett Street premises. The prosecution accepts that such drug was only for personal use.
18 Charge 12 relates to you possessing a drug of dependence, Mescaline. The police, when searching your Powlett Street premises, located 7.5 grams of Mescaline. The prosecution accepts that such drug was only for personal use.
19 Senior Sergeant Campbell McNair made evaluation of the MDMA found at your Powlett Street premises. The valuation is based on prices in Victoria at 2014 with the total value estimated to be between $111,460 and $167,190, depending on the quantity and purity in which it was sold.
Records of Interview
20 During a recorded interview on 4 December 2014 you, McKenzie, offered no comment to direct questions about importation, manufacture, or trafficking drugs of dependence. During a digitally-recorded interview at the St Kilda Police Station, conducted on 6 January 2015 you, Cahir, offered no comment to any question surrounding importation or manufacturing offences. You did play down your involvement in the syndicate and your involvement with McKenzie.
Pre-sentence detention
21 Since your initial arrest you, McKenzie, have been remanded from 4 November 2014, and up to the date of the plea, but not including that date, you had been in custody for 945 days. You, Cahir, have had not pre-sentence detention.
Timing of the plea
22 Counsel for the prosecution set out the history in his prosecution opening of the chronology leading up to your pleas of guilty.
| Event | Date |
| Accused Charged | Mckenzie 4 December 2014 Cahir 6 January 2015 |
| Filing Hearing | Mckenzie 5 December 2014 Cahir 8 January 2015 |
| Committal Mentions | Cahir 6 March 2015 McKenzie & Cahir 16 March 2015 – Committal listed for 16 November 2015 |
| Special Mention | 13 April 2015 – For the purpose of filing form 32 |
| Special Mention | 12 November 2015 – Committal date vacated and re-listed for 7 April 2016 |
| Committal | 7 April 2016 adjourned to 20 June 2016 for special mention |
| Special Mention | 20 June 2016 adjourned to 10 August 2016 |
| Special Mention | 10 August 2016 adjourned to 8 September 2016 |
| Special Mention | 8 September 2016 Cahir & McKenzie plead guilty and matters proceed by way of SHUB |
| County Court mention | 3 March 2017.Original plea date vacated and re-listed for 6 June 2017 |
23 Counsel for the prosecution also noted that a third co-accused, Christian Boyle, pleaded guilty to trafficking DMT and MDP2P, possess materials and equipment, and possess drug of dependence (3 charges), and was sentenced to an eighteen-month Community Correction Order at the Melbourne Magistrates’ Court on 8 December 2016.
24 I should point out that neither counsel for either accused made any submissions pertaining to any issue of parity.
The criminal records of you, McKenzie and, you, Cahir
25 The criminal record of you, McKenzie, was tendered. I note the following history:
(a)On 3 June 1977, you were found guilty of possession of Indian Hemp and smoking Indian Hemp and placed on a $100 Good Behaviour Bond, with the matter adjourned to 2 June 1978;
(b)On 1 September 1977, you were convicted of possessing prohibited imports and was sentenced to five years’ imprisonment with a minimum period of three years. On appeal at the Supreme Court of Victoria on 18 November 1977, your appeal was dismissed and the sentence affirmed. The record indicates that you were released on 12 October 1978. Counsel for the prosecution tendered the judgment of the Supreme Court delivered on 18 November 1977 (Exhibit 6). This judgment reveals that the prohibited import consisted of Heroin;
(c)On 6 November 1980 at the Melbourne Magistrates’ Court, you were convicted of knowingly importing prohibited drugs and fined $700 (in default eighty days’ incarceration);
(d)On 16 March 1981 at the Box Hill Magistrates’ Court, you were convicted of handling, receiving and retention of stolen goods, burglary, theft, obtaining property by deception, forging a document with intention to defraud, unlawful possession, unlawfully on premises precinct and handling and receiving retention of stolen goods. You were sentenced in aggregate to a period of nine months which, seemingly from the records was wholly suspended, and you were placed on a Good Behaviour Bond on the basis that you get treatment for a drug habit;
(e)On 6 July 1987, you failed to appear when charged with possessing Cannabis and then, on 26 April 1991, you were found to possess Cannabis and failing to appear on 6 July 1987, and those matters were adjourned on a Good Behaviour Bond with a surety of $300,
(f)On 26 March 1993, at the Melbourne County Court, you were convicted of 9 counts of importing prohibited imports (Heroin), and received ten years on each count of importing prohibited goods, to be served concurrently, together with five years for the trafficking of heroin, which was to be served concurrently;
(g)On 16 December 1993, at the Melbourne Supreme Court, in relation to the appeal on the matter on 26 March 1993, the Supreme Court increased the sentence, and ultimately you received a total sentence of twelve years with a minimum period of nine years. Counsel for the prosecution tendered the judgment of the Criminal Court of Appeal which handed down judgment on 16 December 1993 (see Exhibit 6).
(h)On 15 June 2005, at the Ringwood Magistrates’ Court, you were convicted of trafficking Cannabis, possessing equipment to manufacture drugs of dependence; possessing Ecstasy, MDMA, MDA, MDEA, MCA and using Cannabis, with you being ultimately convicted and sentenced to fourteen months’ imprisonment, which was wholly suspended for twenty-four months;
(i)On 14 June 2007, at the Richmond Magistrates’ Court, it being noted that there was compliance with your Bond undertaken on 15 June 2005, the proceedings were dismissed – that is, the possession of Ecstasy, including MDMA, MDA, MDEA, MCA, together with the use of Cannabis.
26 Your counsel informed the Court, consistent with information you gave Ms Lechner, that you also served a period of imprisonment of about three-and-a-half years in Thailand in your mid-twenties in relation to drug, and in particular, Heroin, offences.
The criminal record of you, Cahir
27 The criminal record of you, Cahir, was also tendered. I note the following history:
(a)On 30 September 1993, at the Heidelberg Magistrates’ Court, you were convicted of trafficking Cannabis and cultivating a narcotic plant – and use of Cannabis. In relation to the trafficking Cannabis offence, you were convicted and sentenced to four months’ imprisonment, wholly suspended for eighteen months under the then s.27 of the Sentencing Act 1991. In relation to the other offences, you were convicted and fined $500;
(b)On 4 May 1995, you were convicted of cultivating a narcotic plant, Cannabis, possessing Cannabis, and using Cannabis, and were convicted and fined an aggregate of $250, with the drugs being forfeited.
The personal circumstances of you, McKenzie
28 Your counsel tendered the following material:
(a)Report of the clinical psychologist, Ms Carla Lechner, dated 31 May 2017 (Exhibit A-M);
(b)A bundle of references (Exhibit B-M);
(c)Letter from Ms Dianne Salewski – from Prison Fellowship – dated 23 February 2017 (Exhibit C-M);
(d)Bundle of documents and certificates obtained since being on remand (Exhibit D-M);
(e)Chronic Healthcare Plan Criteria (Exhibit E-M).
29 Although probably not tendered because of oversight, I will also refer to the documents headed “Chronology” and “Outline of Plea in Mitigation”. I will have those documents tendered and marked as Exhibit F-M.
30 On the basis of such information and various submissions made by your counsel, I note the following:
(a)You were born in Hong Kong on 29 October 1959 and have one younger brother who now practises as a cardiac thoracic surgeon in Canberra;
(b)Your father worked for an English trading company, and over the years from about 1959 to 1985 you resided with your family in Hong Kong, Japan and the United Kingdom. In January 1970, you commenced as a boarder at Scotch College in Melbourne for five years, and during this time you had holidays in Australia with each of your grandmothers, and apart from two isolated occasions, only saw your parents for Christmas holidays;
(c)You completed your secondary schooling while living with your parents in Tokyo and Hong Kong and attending the American school in Japan and the Hong Kong International School, where you passed the equivalent of Year 12 in 1976. You then moved to Melbourne on your own with a view to obtaining a university place;
(d)Your mother died of breast cancer in 1998, and your father died of complications from renal surgery in 2005. You last saw your brother at your father’s funeral in 2005;
(e)You married Colleen O’Shea in 1982 and that marriage produced a son – Pieres – who is approximately thirty-five years old and works as an accountant. You have a grandson named Ripley, aged one. You keep in reasonable contact with your son;
(f)Colleen died, without any warning, of a brain aneurism in 1998. After being released from custody in 2001, you formed a relationship with Robyn, who died of pancreatic cancer in 2003. You then formed a relationship with Amy, who died in a motor vehicle accident in 2006, after which you then dated Christina from 2008 to 2010, and then parted amicably;
(g)You advised that the deaths of Colleen, Robyn and Amy caused ongoing grief to you. However the disappearance of Colleen’s younger sister, Katie O’Shea, and the resultant inquest into her disappearance, caused you to lose motivation and energy;
(h)You described to Ms Lechner, that at the age of about fourteen one of the teachers “put his hands down my pants” and touched your genitals. Although not thinking about it much at the time, you note that it was about this time that “you went off the rails … wanted to be different and to use drugs … .”;
(i)You described to Ms Lechner that although you had initially used marijuana and LSD in Japan, it was in Hong Kong, when completing Year 12, when you commenced to use Heroin. On returning to Melbourne after completion of your schooling in Hong Kong, you became very much involved with drugs and was sentenced for Heroin-related offences at the age of seventeen. During your first bout of imprisonment, you were severely assaulted, and this gave rise to symptoms of Post-Traumatic Stress Disorder and entrenched your drug addiction;
(j)On being released from prison you spent some years with Colleen working in unskilled jobs to save enough money to travel and live overseas, mainly Asia, where you lived on welfare for years. During this time you had a significant Heroin addiction;
(k)In your mid-twenties, you were caught in Thailand with a couple of grams of Heroin and was imprisoned for three-and-a-half years. You described this experience as very intense and you contracted Tuberculosis, and there was regular violence in the prison area;
(l)Back in Melbourne, six months after your release from the Thai prison, you were arrested for importation of Heroin and imprisoned for twelve years, with a minimum of nine. During this time in custody was when Colleen died, as did your mother and both grandmothers, and you found these losses difficult to endure while incarcerated. While in prison that time, you sought to rehabilitate yourself and started horticulture, and re-established your relationship with your son. You informed Ms Lechner that you have remained abstinent from Heroin since that time;
(m)Upon your release from custody in 2001, you completed a three-year parole period, but was not successful in finding employment in the horticulture field. You ultimately became interested in the music industry and began organising festivals, particularly centred around eclipses, and a successful business was run between 2002/2003, up until your arrest in 2014. Such business included organising music festivals around the world, ensuring that all taxation commitments were met, employing numerous people and working long hours yourself, both in Australia and overseas. Furthermore, you established a tent business;
(n)Following a conviction and suspended sentence in relation to a Cannabis charge in 2005, you sought rehabilitation from Cannabis use, seeking counselling from a variety of psychologists;
(o)However, as noted, during this subsequent time you lost two partners and became disturbed over the 2006 disappearance (presumed death) of your sister-in-law, who had assumed primary care of your son when Colleen died and you were in prison;
(p)Following the inquest into your sister-in-law’s death, you report sinking into a distressed mood state and began using a lot of Cocaine and LSD, rationalising to yourself that it was “not as bad as Heroin”. You stated to Ms Lechner that it was in this context that your offending occurred and, furthermore, that you find your actions “hard to believe” – “it was not a money thing … I wonder if I sabotaged myself”.
The evidence of Ms Lechner
31 Ms Lechner conferred with you on 30 May 2017 and noted that, at that time, you presented with symptoms of Major Depressive Disorder, which she considered was partly reactive to your current situation, and on the history given by you, in part, as a result of the number of personal losses which caused you immense distress.
32 At your interview you presented in a polite and pleasant manner, giving a clear and coherent account of your past and present circumstances. Beyond the symptoms descriptive of a Major Depressive Disorder, you also had residual features of Post-Traumatic Stress Disorder relating to the assault suffered in prison as a teenager, and a more recent one in 2011 as a result of your nephews.
33 Ms Lechner found you to be of “average” intelligence and that during your period of remand in prison for two-and-a-half years, you have reflected on the impact that your behaviour has on both yourself and others. According to Ms Lechner, you are now able to see the danger associated with all drugs, not just on users themselves, but the entire community. You admitted that you previously fooled yourself into thinking that hallucinogens and stimulants (such as Cocaine) were not as dangerous as Ice and Heroin. You are no longer of this opinion. Although your relationship with your son is ongoing, it has become strained because of your re-offending, but according to you, you continue to have a positive social support network which has provided assistance during your present incarceration.
34 Ms Lechner administered various psychometric testing which supported the clinical diagnosis of Depression.
35 When discussing your offending behaviour, Ms Lechner notes that you found it very hard to explain such offending and that it was “not a money thing”. Ms Lechner comments that you are underplaying the financial benefit that you stood to gain, although notwithstanding this degree of denial, she accepts that you seemed to have gained a much better insight regarding the negative effect of all drugs, and to this end, wish to remain abstinent into the future.
36 Ms Lechner also noted that you have “enhanced” status at Port Phillip Prison, which means that you have been of “good behaviour” and have, therefore, accrued a greater level of trust and privileges. Apparently this is reflected in your work role that you play as a peer educator and reception billet. However, you are finding your time in custody more difficult on account of your age and poor health. You noted that you were present during the riots at the Melbourne Remand Centre in 2015 and was subject to tear gas, which appears to have aggravated your lung condition, with an attendant decline in physical health. At that time you were also placed “in the slot” at Barwon Prison immediately after the riots until you were “cleared” of any wrongdoing. Furthermore, you continued to be “on edge” in prison on account of your previous experience of being assaulted in Pentridge.
37 Because of your diagnosis of Depression, you are currently prescribed a low dosage of the antidepressant medication, Avanza, and you see a psychiatrist or medical officer about once every two to three months.
38 In her opinion, Ms Lechner states, in part:
“With respect to his offending Mr. McKenzie accepts responsibility for his actions, expressing regret and shame. While he understands that his grief and depression were a precipitant to a relapse to heavy drug use as a means of blocking out his distress, he also accepts that his offending is not explained by his emotional state alone although no doubt his judgement and decision-making skills would have been undermined by his drug use. He reports being at a loss to explain his involvement in the offences, underplaying the financial gain that he stood to make.
Clearly the consequences of his offending are a matter for the Court to determine. Mr. McKenzie would benefit from involvement with treatment services as outlined above although realistically he will not receive such assistance whilst in prison. Mr. McKenzie's prognosis is not without hope. He has demonstrated a past ability to participate in the community largely without offending, for a sustained period. He has also been able to overcome his addictions in the past and whilst in prison, he is focused on his rehabilitation. Given that he reports a change in his view on all drugs, the risk of relapse is minimized.”
The evidence of Mr Gill Nachun
39 Mr Gill Nachun was called on your behalf and gave evidence at your plea hearing. He described himself as a restaurant owner, being involved in event production, and a disc jockey.
40 In particular, Nachun gave evidence that he had known you for about twelve years and, in particular, met you at a dinner party shortly after he arrived in Australia from Israel. Later you bumped into each other and then formed a friendship. Nachun noted that you had shown a lot of interest in things that he liked and that you were able to open a lot of doors in relation to his event-production activities. Much of this help was without pay.
41 Nachun described you in the following terms:
“… a good friend, he's the kindest, warmest, gentlest soul. He likes to help wherever he can, a man of many talents, a man of many, um fields and areas of conversations, um, great friend, great person, um, doesn't have one single bad bone in himself.”
42 Nachun confirmed that he has continued to visit you in prison and continued to have various discussions of a wide-ranging nature. In particular, he gave evidence that when you were involved in the music festival work, you were also involved with tree planting all over Australia, Wildlife Australia, preservation of forests and anything that was related to nature.
43 When queried as to whether or not you had expressed any remorse, Nachun gave the following evidence:
“Of course. He - he is aware that it is a serious matter, um, and he has told me that, ah, many times that, ah, he is very regretful, um, and doing these things, um, into this scale. Um, and yeah, I can - I can relate to - to the pain that he was going through in the past, and trying to, um, counter that with use of many different types of drugs just to make himself feel better, um, into the point of really losing touch with reality and - and - and onwards, and - and doing things that he shouldn't, and I believe that now that he's been clean for such a long time, he can understand, and he knows, um, the seriousness of his actions, and ‑ ‑ ‑.”
Other material
44 I refer to Exhibit D-M, which consists of the various certificates that you have obtained while in prison. They include Hepatitis Victoria’s Stay Safe Inside Program, participation in substance use programs on 9 January and 16 January 2017, certificates for enrolment to study vocational pathways and cleaning operations, kitchen operations and digital media and technology. Also, I note that you obtained a certificate in horticulture in 2016, certificates in micro-business operations in 2016, and a Certificate II in Cleaning Operations in 2016. In December 2016 you were awarded a Certificate of Appreciation for your contribution to the Port Phillip Peer Support Program.
45 I also refer to Exhibit C-M, which consists of a letter from Ms Diane Salewski of Prison Fellowship. In that letter she describes how she has been involved with Prison Fellowship – Victoria at Port Phillip Prison for the last five years. Her main role is coordinating a six-week “Change on the Inside” course, which is an educational initiative that focuses on proper character development. She reports that you were accepted to participate in such course last year and were an integral part of the group. Throughout the six-week course you contributed well in group discussions and showed both your peers and the Change on the Inside team a high standard of respect.
46 Ms Salewski describes your openness and awareness of the life changes that you need to make and are already implementing to the extent you can while in prison. She appears that you appear to be aware of the changes that must be made for your future and to be a positive contributor to society.
47 I also refer to Exhibit B-M, which consists of a large bundle of references. I have read such references. The tenor of such references is that you are a warm, compassionate man, who is very supportive and generous to your friends. Furthermore, some of the authors also note that the disappearance of your sister-in-law, and the subsequent inquiry, had a significant detrimental effect on you.
48 I also refer to exhibit E-M, a Chronic Healthcare Plan created at the Melbourne Assessment Prison on 1 December 2014. Such document notes that you are suffering from emphysema and asthma. There is also reference on that document to a Hepatitis Plan. I note that you informed Ms Lechner that you contracted Hepatitis when in Thailand.
Your counsel’s plea in mitigation
49 Your counsel submitted that the following matters should be taken into account in mitigation of any sentence:
(a)That you have pleaded guilty at a relatively early time. Such plea of guilty, so it was submitted, has more utilitarian value than many cases because of the sheer size and complexity of the prosecution case if it had to run to verdict. Furthermore, it was submitted that you gave instructions over two years ago that you would forego committal proceedings and enter a negotiated plea. The community has been saved the expense and inconvenience of a lengthy committal proceeding and a lengthy trial;
(b) You have demonstrated remorse in the following ways:
(i) Cooperation with authorities;
(ii)Indicating at an early stage your wish to plead guilty to a negotiated plea and forego a committal;
(iii) A plea of guilty in the Magistrates’ Court;
(iv)“Letting go … [your] … belief” that psychedelic drugs were somehow in a “good” category compared to Heroin and Ice;
(v)That you now appreciate that all drugs are bad and while undergoing sentencing intend to accept all counselling possible to help ensure that you do not relapse again (it being noted that counselling was available on remand);
(c)That you have been on remand for two-and-a-half years and that it has, “long been accepted that being on remand is more onerous than undergoing sentence”, and it was submitted that those difficulties should be taken into account in sentencing. Furthermore, you were present at the 2015 riots at the Melbourne Remand Centre and was amongst those who inhaled tear gas, and later was transferred to Barwon Prison in lockdown, despite not being involved, and later confirmed as being cleared of any involvement. You are now a peer educator and a model prisoner;
(d)Your prior conviction for importation of Heroin (the offence date being 1991), involved you pleading guilty to nine importations of Heroin between 1 June 1990 and 22 July 1991 – each importation being approximately 300 grams of high-grade Heroin. The current import plea is to one importation of a different substance by post;
(e)You have been diagnosed with depression and symptoms of Major Depressive Disorder (by Ms Lechner) and you also suffer from emphysema, asthma and the effects of pulmonary tuberculosis. In all the circumstances, your incarceration will be more difficult because of these psychological and physical problems;
(f)When released from prison after the sentence for the importation of Heroin you did not re-offend during your period of parole, and over such time developed your business of arranging and producing music festivals, and over the years that expanded to the supply of lighting, general camping equipment, furniture, webbing and large tents. In particular, it was submitted that you have demonstrated your ability to overcome Heroin addiction and that the catalyst for your relapse into extensive drug use after your release from the Heroin sentence was an “accumulation of grief”. Your counsel accepts that you did relapse in 2006 when you were convicted of trafficking Cannabis and possessing equipment to manufacture drugs of dependence, together with possession of a variety of different drugs.
(g)Notwithstanding the offending and your personal drug use, you have never been charged with any offence of violence and, indeed, there has been no evidence of weapons or physical force connected with your drug syndicate.
50 In particular, it was submitted that you have demonstrated that you were capable of overcoming your Heroin addiction and, indeed, since being released after the lengthy sentence for Heroin importation, you have avoided that drug. It was submitted that your downturn resulting in the subject offending was brought about in part by the disappearance of your sister-in-law and such relapse to what may be generally referred to as psychedelic drugs rather than Heroin. This occurred in the context that you were probably depressed, and had been depressed in all probability for some years given the loss of your sister-in-law, and previous personal losses in your life. Further, it was submitted that as suggested by Ms Lechner, there is some hope for your rehabilitation given your apparent decision to do away with drugs generally, and particularly psychedelic drugs.
51 Also in support of this submission that rehabilitation is possible, it was stressed that some of your friends continued to run your business and ultimately you believed that you will be able to go back to that sort of business – either running your old business or, alternatively, obtaining a job in that area, as you are well-known for that sort of work.
The personal circumstances of you, Cahir
52 Your counsel tendered the following documents:
(a) Exhibit A-C – pamphlet regarding ongoing change out of violence;
(b) Exhibit B-C – defence submissions;
(c)Exhibit C-C – report of the psychologist, Mr Michael Bilyk, dated 28 February 2017;
(d) Exhibit C-D – bundle of documents;
(e) Exhibit E-C – letter from your partner, Edith Mago, dated 2 March 2017.
53 On the basis of such information and various submissions made by your counsel, I note the following:
(a)You are presently forty-eight years of age (born in May1969) and were forty-five years old at the time of offending. You have an older sister who now lives in Melbourne;
(b)You were born in Cobram and describe a normal childhood, with no exposure to domestic violence or sexual abuse. You completed Year 6 at Cobram Consolidated Primary School, and at age eleven you were sent to Boarding School at St Bede’s College in Mentone;
(c)Your parents moved to Melbourne when you were thirteen years of age and moved about frequently between various suburbs in order to renovate houses and sell them for a profit;
(d)You left St Bede’s College following completion of Year 9, aged fifteen years. Upon leaving school, you have had the following employment:
(i)You commenced an apprenticeship in plastering, but ceased after two years, at the age of sixteen, due to developing Dermatitis;
(ii)You went on to commence a panel-beating apprenticeship between the ages of seventeen to eighteen, after which you worked for a car manufacturer between the ages of eighteen to twenty-two;
(iii)You were subsequently a carpentry labourer for a year and thereafter you instructed that you were largely unemployed between the ages of twenty-three to twenty-eight, although did open a fencing business during that time.
(e)Your parents, during your late teens, purchased a tennis shop in Ringwood, but unfortunately the business was not successful and closed down when you were in your late twenties. Around that time, your parents purchased a brothel named La Boudoir, in Collingwood, after which you commenced working for your parents as their maintenance manager, which you have been doing on and off for the last twenty years. Furthermore, since the subject offending, you have been employed by Vicinity Centres as a cleaner. I refer to the letter from Mr Naz Hall, office manager of Vicinity Centres, which is contained in exhibit D-C. Mr Hall notes that you have been employed as a maintenance contractor for Vicinity Centres since 18 May 2015. At that time, he was aware of your past drug history.
Mr Hall describes how you do a variety of jobs at Vicinity Centre and have become, over the last couple of years, a very reliable contractor who takes great pride in his work, is trustworthy and punctual. Mr Hall describes you as someone who would be a great asset in any organisation and that you have become well respected in your workplace by your various workmates. Mr Hall does note that you recently obtained your driver’s licence so that you can travel to the suburbs in order to continue working for Vicinity Centres. However, he does also comment that if you were to be a sentenced to a period of imprisonment the company policy will not allow for your employment to continue;
(f)When you were about thirty-eight years old you travelled to the Philippines for dental treatment and met your current partner, Edith Mago. Ms Mago has nor prior convictions and has never used drugs. During the period from 2008 to 2011 you moved to the Philippines and lived with Ms Mago, during which time you started a taxi business.
54 Your counsel noted that you have had a long-term drug problem which commenced around the age of fifteen, when you started using Cannabis and at sixteen, started using amphetamines. At some stage in your thirties you were introduced to Cocaine, although you were drug free during your period in the Philippines. On your return to Australia you commenced using Cocaine on a daily basis for a number of years prior to your arrest. You advised that you had known McKenzie for a number of years and that he would provide you with Cocaine frequently, and in return you would perform such work as cleaning his house, mowing his lawns and looking after his cat. McKenzie also gave you money.
55 Leading up to your arrest you were living in rental premises in East Melbourne, and it was necessary for your parents to supply money for food, as you could not support yourself and your partner, as other moneys were spent on drugs.
56 You have instructed your counsel that you do not remember the precise details of your prior offending – that is, the matters to which I have already referred in your criminal record. It was noted by your counsel that you did not receive immediate gaol terms for those offences.
Your activities since your offending
57 It was submitted by your counsel that you “could not have done more to rehabilitate … [yourself] over the past two years and five months – that is to say, since you being charged”. Your counsel highlights the following matters:
(a)You are now demonstratively drug free and reference was made to clean drug urine screens taken between 12 January 2015 and 19 May 2017 (see generally Exhibit D-C). In particular, I refer to the medical report from Dr Kevin Parker dated 30 June 2015 (again, Exhibit D-C), wherein he confirmed the drug urine screens commenced in early January 2015 and have only revealed the presence of Benzodiazepines, prescribed by Dr Parker for your mental health, and on one occasion there was a positive finding of narcotics following you taking Nurofen Plus for a headache. Also, as pointed out by your counsel, the initial urine screen showed some evidence of Cocaine use, but this is no more than evidence that you were an addict at the time of your arrest. Furthermore, as is noted in some of the documentation, when arrested you weighed 54 kilograms and you now weight 94 kilograms, again, some evidence of your abstinence from drugs;
(b)You have attended upon the psychologist, Michael Bilyk on ten separate occasions. In this respect, I refer to Exhibit C-C, which is the report of Michael Bilyk dated 28 February 2017. Dr Bilyk noted that you were referred to him by Dr Kevin Parker, who requested assessment and management of anxiety and depression. Mr Bilyk saw you on ten occasions from 13 February 2015 to 9 November 2015. During such consultations, you received treatment to regulate mood and improve your sense of well-being when experiencing stressful life circumstances.
Testing undertaken by Mr Bilyk revealed reduction in psychological distress over the consultation, although your depression continued to be in the severe range, with some reduction in anxiety.
Mr Bilyk noted that you denied any illicit substance usage, was taking urine screens to demonstrate such, denied suicidal- or self-harm concerns, and highlighted that you wished to be a provider for your partner. In particular, Mr Bilyk reported that you have a desire to undertake education training and further treatment, as offered, during any prison sentence imposed, to better assist your rehabilitation and your sense of efficacy. Furthermore, Mr Bilyk noted that you have remained employed during your period of bail and had ceased contact with all antisocial acquaintances.
(c)That you had attended eight sessions with Mr John Anderson, the counselling and care recovery coordinator of Cohealth. I refer to exhibit D-C, which contains a letter from Mr Anderson dated 10 May 2017, wherein he describes you as having a genuine commitment and enthusiasm in attending sessions, and feeling more positive with treatment. In particular, Mr Anderson noted that you had ceased use of drugs, had undergone urine drug screening, had improved relationships with your family and friends, experienced improving physical and mental health and becoming far more self-aware of the issues;
In particular, Mr Anderson stated:
“Mr Cahir identified he has; learnt new coping strategies when dealing with life stressors and identified triggers, and developed better life skills. Also Mr Cahir is aware of the connection between substance use with his behaviour, and the impact it has had on his physical and mental health.
It is the writer's assessment that Mr Cahir is making attempts to change his lifestyle, and he now feels by engaging in AOD Counselling, positive changes have been made. … .”
(d)That you have also attended the organisation “Ongoing Change” on a weekly basis since 14 January 2015 (approximately 120 sessions). I refer to the letter jointly signed by Keith Maxwell and Ivan Wilson about Ongoing Change dated 21 February 2017 (see Exhibit D-C). The authors noted that you were referred to Ongoing Change by someone from the Melbourne Magistrates’ Court and, thereafter, voluntarily approached the organisation and continued to attend. It is noted that you have developed an inner calmness and confidence through this participation and developed and strengthened a set of strategies to equip you for overcoming your past problems and, in particular, your drug use.
58 You have instructed your counsel that your future goal is to remain abstinent from drugs and live a normal, hard-working life. In particular, you have learnt that “never a good decision has been made whilst using drugs”.
Your counsel’s plea in mitigation
59 Your counsel submitted that the following matters were relevant in mitigation of any sentence:
(a)That you pleaded guilty at a time which should be considered an “early stage”. Such a plea has saved the time and cost of a trial, and committal, and spared witnesses the inconvenience of giving evidence;
(b)That you are genuinely remorseful for your offending. Reference was made to:
(i) Your plea of guilty;
(ii)The letter dated 1 March 2017, authored by Mr John Anderson of Cohealth, that states that you have “expressed embarrassment, shame and regret” for your offending;
(iii)The letter dated 2 March 2017 from your mother, Ms Jill Cahir, that states “Samuel has expressed how sorry he is that he has committed the crimes he was arrested for”. I also refer to that letter (see Exhibit D-C), wherein your mother highlighted the changes that you have made in your life since January 2015, whereas prior to that you had been employed by your parents, but during this time your mother describes such situation as being a “nightmare” because of your ongoing drug habit. Your mother considers that you were introduced to drugs at boarding school from a young age, and thereafter have always had problems with drugs.
However, since January 2015, you are a “completely changed man” who fulfils your work commitments and have never missed a day’s work. Following your father suffering heart failure in 2014 and being recently diagnosed with diabetes, you have now taken over all your father’s responsibilities in the home and in the family business. Your mother notes that it is now a “joy” to have you in the home and that you are a well-respected and valued employee of hers. Your duties involve maintenance work, plumbing and tiling, all handyman jobs and you also perform cleaning and banking duties;
(iv)The letter from Naz Hall (undated) from Vicinity Centres stating the offending is a “source of deep and intense regret for him”.
(c)Although it was conceded by your counsel that trafficking in a commercial quantity of MDMA is a serious offence and that in the circumstances of this matter, the offence is constituted by manufacturing at Aughaderry Road premises and the Watt Street premises, together with the possession of the amphetamine located at the Powlett Street premises. It was also accepted that the seriousness of this type of offending can be measured, in part, by the quantity of the drug. In this sense, the total pure amount of 153.7 grams of MDMA is 1.5 times that of the commercial quantity.
However, it was submitted that it cannot be said how many times you attempted to manufacture drugs at the various premises or, indeed, how many times were you successful in the manufacture of such drugs. At all times over the period you were working for McKenzie, who was the principal offender in relation to these proceedings;
It was submitted that the offence is not accompanied by other aggravating features, such as possession of large amounts of cash and/or firearms.
It was submitted on your behalf that the offending occurred in the context of serious drug addiction and that the motive behind the offending was to feed this addiction. In such circumstances, it was submitted on your behalf that this lessens your moral culpability and, indeed, there was no evidence that you were living an extravagant and rich lifestyle as a result of the offending;
(d)There has been a delay between the date of the charge and the date of the plea of 882 days, all of which is through no fault of the defence. Reference was made to the case of R v Miceli (1998) 4 VR 588 and, in particular, 591, and R v Merrett, Piggott & Ferrari (2007) 14 VR 392 at pages 400-1 and Bournev R [2011] VSCA 159 at [30]-[32], to support the submission that there are two ways in which delay will usually be relevant. Firstly, it is relevant to the extent to which the offender has achieved rehabilitation during the delay which affects the relevance of specific deterrence in any case. Secondly, delay is relevant to the extent that it constitutes a form of punishment in itself, given the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head an offender will ordinarily experience. It was submitted that both ways in which delay can be utilised are relevant to your sentence;
(e)It was submitted that you have excellent prospects of rehabilitation given your lack of recent prior offending, strong family support, demonstrated rehabilitation, and your ongoing employment;
(f)I refer to Exhibit D-C which also can contains a reference from your sister, Stephanie Herrod, dated 2 March 2017. Your sister highlights that up to the time of your arrest, you had what she describes as a “very serious drug problem”. However, from the time of your arrest, she asserts that you realised you were at the “bottom of the barrel” and thereafter you have seriously dedicated yourself to rehabilitation consistently over the period from your arrest to date. She also notes that she knows of your own “personal guilt for what [you] have done and the anguish [you] have caused … your parents and Edith [your] partner". She speaks very strongly of your transition through your rehabilitation over the last couple of years and expresses the view that you have “truly changed”;
I also refer to the reference from the Reverend Father Michael Elligate, the Parish priest at Saint Carthage’s University Parish Parkville, dated 1 June 2017. Again, Father Elligate describes how you have turned your life around. He notes that you have acknowledged that you have been stupid and immature and now attempting to embark on a responsible way of living.
60 Ultimately, your counsel submitted that given all the above mitigatory matters, a lengthy community correction order is within range or, alternatively, that a term of imprisonment be imposed that allows the earliest possible release to enable you to continue your good work towards rehabilitation.
The response of the prosecutor
61 In relation to you, McKenzie, counsel for the prosecution submitted that, bearing in mind your previous criminal history and your involvement in drugs generally, the prospect of rehabilitation can only be described as “extremely guarded”. It was also stressed that the LSD found, being the subject of Charge 1, can only be described as a “massive amount”. Furthermore, in relation to the importation of the MDMA, relevant to Charge 9, such importation of a commercial quantity is the highest marker.
62 Counsel stressed that both of these offences are very serious and significant, as is manifest by the maximum penalty being life imprisonment for each offence. Counsel for the prosecution submitted that general deterrence is particularly significant in such matters and given your record, specific deterrence is also of some importance. Of course, the sentence must reflect the denunciation of such crimes, and also the safety of the community should be taken into account.
63 Counsel for the prosecution accepted that the drug operation was not particularly sophisticated, but in such an operation there cannot be really any control how much of a particular dose is put in a particular tablet or vessel. Of course, this leads to total disregard for the safety of others and ultimately, such activities, so it was submitted, can only be motivated by greed.
64 In relation to you, Cahir, counsel for the prosecution noted that in relation to the trafficking offence, the amount of MDMA, although not a large commercial quantity, was a commercial quantity, and is a significant amount of that drug. Counsel for the prosecution also stressed that you are to be sentenced for performing assistance at the various venues where the drugs were manufactured. Counsel for the prosecution also refer to the previous matters involving possession and the trafficking of Cannabis, but being over twenty years old, accepted that they are of “limited relevance”.
65 Counsel for the prosecution tendered a bundle of sentencing statistics (Exhibit 5) consisting of:
(a)Sentencing Snapshot 194, published in June 2016, pertaining to sentencing trends from 2010-2011 to 2014-2015 for the offence of trafficking in a large commercial quantity of drugs;
(b)Sentencing Snapshot published in June 2016 and pertaining to sentencing trends from 2010-2011 to 2014-2015 for the offence of trafficking in a commercial quantity of drugs;
(c)VCC summary of cases in respect of trafficking in a large commercial quantity of drugs over the period from 1 January 2016 to 31 July 2016;
(d)VCC summary of cases in respect of trafficking in a commercial quantity of drugs over the period from 1 January 2016 to 31 July 2016;
(e)A document from the Judicial College Manual headed “Current Sentencing Practices for Drug Importation Consistency in Sentencing for Commonwealth Offences”. In particular, reference was made to the decision of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and in particular to the judgment of McLennan CJ, who analysed almost eight drug importation cases, after which he grouped the cases into four categories of importing a commercial quantity contrary to s.307.1 of the Criminal Code (Cth) (relevant to Charge 9).
66 It is to be noted that appellate courts in New South Wales (R v Huang [2000] NSWCCA 238 at [109]) and in Victoria, Phuong Bich Nguyen v R; Phommalysack [2011] VSCA 32 at [36]-[37] and Peng [2014] VSCA 128 at [39], have adopted these categories. Maxwell P, in Phuong Bich Nguyen, Phommalysack (op cit) at [36]-[37] stated, in part:
“It should be emphasised that this classification was intended to be descriptive of current sentencing practice and hence to promote consistency of sentencing in future. His Honour was not purporting to lay down quantitative sentencing guidelines ... .
To have current sentencing practice distilled in this accessible fashion is of the greatest assistance. It should certainly be conducive to consistency.”
67 Counsel for the prosecution accepted that there was utilitarian value of the early pleas of both you, McKenzie, and you, Cahir, should be taken into account. Furthermore, in respect to you, Cahir, counsel for the prosecution, although not necessarily accepting that any delay was the fault of the prosecution due to the very complex nature of the proceedings, generally accepted that delay can be used to assess what efforts have been made on the part of an offender to overcome his drug habit and increase his prospects of rehabilitation.
68 Ultimately, counsel for the prosecution submitted that any sentence relating to you, McKenzie and to you, Cahir, should involve immediate imprisonment.
Conclusion
69 As long ago as R v Piercey (1971) VR 647, the then Victorian Court of Criminal Appeal stressed that drug offences were a substantial social evil. Since then, the view expressed by Winneke CJ has been restated in a variety of ways in a large number of cases involving drug use and, in particular, the trafficking of drugs.
70 I refer to the comments of Tadgell J in Moran & Byrnes v R [1987] 31 A Crim R 248, wherein the Criminal Court of Appeal in Victoria stated (at page 254):
“… Drugs of addiction - wantonly produced, distributed and used - continue to present to a modern civilised society an increasing burden both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil … .”
71 Turning to you, McKenzie, the material available to me would suggest that you had a privileged upbringing which was marred by your exposure to Heroin at an early age – in your late teenage years. As early as September 1977, when still a teenager, you were convicted of possessing prohibited imports consisting of Heroin and sentenced to five years’ imprisonment, with a minimum of three years. You were released for reasons which are not clear on 12 October 1978. Later in November 1980, you were again convicted for knowingly importing prohibited drugs.
72 Again, on 26 March 1993, you were convicted of nine counts of importing prohibited imports – which was Heroin – and also one count of trafficking Heroin, and received ten years’ imprisonment on each count of importing prohibited imports and five years on a count of trafficking Heroin, again, to be served concurrently. On 16 December 1993, the Supreme Court increased the sentence and ultimately you received a total effective sentence of twelve years, with a minimum period of nine years. It was put by your counsel at the plea that on your release from prison in 2001, on parole, you overcame your Heroin habit and became very much involved in your business activities promoting musical events, and later being involved in the sale of canvas products.
73 It is to be noted that in June 2005 you were convicted at the Ringwood Magistrates’ Court for trafficking Cannabis and possessing equipment to manufacture drugs of dependence, together with offences involving the possession of Ecstasy, MDMA, MDA, MDEA, MCA and Cannabis. At that time, you were sentenced to fourteen months’ imprisonment, which was wholly suspended. It was put by your counsel at the plea that through a series of deaths of loved ones and, in particular, the disappearance and presumed death of your sister-in-law, you deteriorated over time and began using hallucinogenic drugs and later the drug syndicate which was involved, in part, with the importation of MDMA from Germany, together with the selling of other drugs.
74 Consistent with the opinion of Ms Lechner, I tend to the view that most probably you had some degree of depression after being released from prison in 2001, which ultimately may have had some impact on you relapsing into drug use – albeit of an hallucinogenic type. However, I do not accept that such emotional stressors brought about by your various losses played any real role in you organising the drug syndicate of which you have been identified as the syndicate leader. Furthermore, although you asserted that the sale of drugs to people and the manufacture of such drugs as LSD and Ecstasy (MDMA) was “not a money thing”, I have formed the view, beyond reasonable doubt, that such activities were for financial benefit.
75 I do accept that although the drug operation was not particularly sophisticated, it did involve the Watt Street premises, the Lexton Road premises and the Aughaderry Road premises, together with a number of post office boxes. Furthermore, the various photos tendered demonstrate that there was a variety of equipment at some of these sites, consistent with the manufacturing of drugs of dependence. Clearly enough, even if you did suffer some degree of depression, you had the wherewithal, being the principal of the syndicate, to set up its operation and oversee its working.
76 I do accept that there is no indication that the syndicate was involved in any type of violence or intimidation sometimes involved with the running of a drug syndicate and the collection of drug debts.
77 I now turn to the particular charges, and in particular I commence with those charges under the Victorian legislation:
(a)Charge 1 involves you trafficking LSD over the period between 11 September 2014 and 4 December 2014 in a quantity that was not less than the large commercial quantity applicable to that drug of dependence.
A large commercial quantity of LSD is not less than 150 pure milligrams. As a result of various search warrants being executed at the Watts Street premises, the Lexton Road premises and the Aughaderry Road premises, forty-nine exhibits were found of LSD, of which eight were tested and analysed to reveal 2,841 milligrams pure LSD. Such amount is a vast amount, many times greater than a large commercial quantity of not less than 150 pure milligrams.
This charge represents the amounts of LSD seized and analysed, and the ongoing traffic and manufacturing of the drug. I consider such offence to be very serious, particularly in the context of your role as the syndicate leader, and also taking into account your past criminal history in relation to drug offending – albeit mostly Heroin;
(b)Charge 2 involves you trafficking in a commercial quantity of Ecstasy. A commercial quantity of Ecstasy is 100 pure grams. Police found a mixed amount of MDMA at your Watts Street premises, and also a further amount at your Lexton Road premises. The amount found at your Watts Street premises was tested for purity and found to be 178.6 grams pure Ecstasy. The charge of trafficking extends over a period of approximately three months and involves you in the possession of a commercial quantity of the drug, the manufacturing process of conversion of liquid to crystal, as well as the ongoing business of trafficking revealed in the telephone intercepts (although it is not possible to quantify the amount trafficked to others).
Again, I consider this offence to be a particularly serious offence, given your role as a syndicate leader and, again, your past criminal history involving drug offences. Furthermore, the amount of the pure drug was substantially more than the stated commercial quantity of 100 pure grams;
(c)Charge 3 relates to trafficking in a drug of dependence, DMT, which is a psychedelic hallucinogen. A trafficable quantity of DMT is 0.5 pure grams. Police found, at the Lexton Road premises, 78.3 grams of DMT which, on analysis, was established to be 74 grams pure. Again, various paraphernalia found at the Aughaderry Road premises indicated that such premises had been used for the manufacture of that drug and, indeed, telephone intercepts revealed trafficking in DMT, which cannot be quantified. Such offending occurred over approximately three months in late 2014.
I also consider such offending to be of a serious nature given the amount of the drug, the fact that manufacturing of such drug took place at the Lexton Road premises, your role as syndicate leader, and your past criminal record in relation to drugs;
(d)Charge 4 relates to the trafficking of a drug of dependence – MDA – which I was informed is a type of Ecstasy. A trafficable quantity of MDA is 3 grams. Police located 3 grams of MDA at the Watts Street premises and, further, the presence of Sassafras, which is a precursor for the manufacture of MDA, which was located at the Lexton Road premises. Such offence is represented by the ongoing trafficking and manufacturing of that drug and occurred over the period of approximately three months;
(e)Charge 5 relates to the trafficking of a drug of dependence – Cocaine. A trafficable quantity of Cocaine is 3 grams. Police located 33.3 grams of Cocaine at the Watts Street premises, 2.2 grams at the Lexton Road premises, and 3 grams at the Aughaderry Road premises. The total amount of Cocaine located at those premises was 38.5 grams. Such offence is limited to one day on 4 December 2014, and I consider that such offence is serious, although not as serious as the preceding offences due to the limited period, and the amount of the Cocaine;
(f)Charge 6 relates to the trafficking of a drug of dependence – 2C-B/Nexus – which I am informed is a synthetic hallucinogen. A trafficable quantity of such drug is 3 grams. Police found, at the Watts Road premises, 13.3 grams of the drug, and a smaller quantity of the drug was found at the Lexton Road premises. Again, such offence was limited to one day and, of course, there is no suggestion that you manufactured such drug. Again, although all trafficking offences are serious, I consider Charge 6 a less serious offence than the first four offences;
(g)Charge 7 involves the possession of drugs of dependence which extend to a large number, all of which, it is accepted, were for your personal use. Such drugs were found at your various premises.
Such drugs were not manufactured for you and no financial benefit was derived from them;
(h)Charge 8 involves you knowingly possessing proceeds of crime amounting to $176,950, which was found, in part, at the Lexton Road premises and, in part, at the Watt Street premises. It is the case that the entire amount was derived from drug trafficking and manufacturing activities.
78 I now turn to Charge 9, which is an offence brought under the Commonwealth legislation. It relates to importing a commercial quantity of MDMA and relates to police locating two port bottles containing a total of 2,173.3 grams of MDMA. Such bottles were sent from Germany, and examination revealed this amounted to 1,923.5 grams of pure MDMA – that is slightly less than 2 kilograms of that drug. The commercial quantity – which is the highest quantity – of the border-controlled drug MDMA is 500 grams pure form of the drug. Although the offending is limited to one occasion on or about 5 December 2014, I consider this offence to be particularly serious, as is made manifest by the maximum sentence of life imprisonment. In particular, the import of such drug facilitated the trafficking of MDMA. Furthermore, such offending occurred in circumstances where you have an earlier conviction and a substantial sentence for importing Heroin into this country.
79 I intend to convict you of all offences and sentence you to immediate imprisonment in relation to such offences. I consider that in the circumstances of this matter, denunciation of the offences, general deterrence, specific deterrence, and the protection of the public, are important considerations in determining appropriate sentences. In particular, the authorities make clear that general deterrence is of great importance, and in your particular circumstances I consider specific deterrence also to be important given that earlier prison sentences seemingly have not deterred you from criminal and, in particular, drug offending.
80 Charges 1, 2 and 9 also require that you be sentenced as a “serious offender” within the meaning of Part 2A of the Sentencing Act 1991 (see offences listed in clause 3 of Schedule 1 of the Sentencing Act 1991). Pursuant to s.6F of the Sentencing Act 1991, your status as a “serious offender” must be entered into the records of the Court.
81 Section 6D of the Sentencing Act 1991, directs the court, in determining the length of the sentence, to have regard to the protection of the community as the principal purpose for which the sentence is imposed, and may impose a sentence longer than which is proportionate to the gravity of the offence considered in the light of its objective circumstances. In the circumstances of this matter, the prosecution did not seek a disproportionate sentence. After due consideration, I do not intend to order a disproportionate sentence.
82 Pursuant to s.6E of the Sentencing Act 1991, every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any other sentence of imprisonment imposed on the offender at the same time.
83 I refer to the cases of RH McL v R (2000) 203 CLR 452 and Gordon v R [2013] VSCA 343 at [74], which deal with the seeming tension between s.6E of the Sentencing Act 1991 and the principle of totality. In particular, Redlich JA observed:
“A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s.6E of the Sentencing Act 1991. This tension between the policy underlying s.6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s.6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s.6E and the principle of totality.”
84 I have perused the sentencing snapshots in relation to trafficking in a large commercial quantity of drugs (Charge 1) and the sentencing snapshots in relation to trafficking in a commercial quantity of drugs (Charge 2). Furthermore, I have perused the categories described by McLennan CJ in DPP (Cth) v De La Rosa (op cit) in relation to the importing of drugs of a commercial quantity (Charge 9). The categories devised by McLennan CJ has been of some assistance but, of course, no one category describes the particular circumstances of this matter – you being identified as the syndicate leader, the offending occurring on one occasion, and the amount of the imported drug being 1,923.5 grams of pure MDMA and, indeed, your prior conviction for a similar offence, albeit involving Heroin.
85 In mitigation of any sentence, I do take into account your relatively early plea of guilty in relation to the offences. As submitted by your counsel, a plea of guilty has, at the very least, utilitarian value in saving the time and cost of a trial. In this matter, a trial would have been lengthy given the various evidence to be relied on by the prosecution, which involved telephone intercepts and optical devices, as well as physical surveillance.
86 Although I consider you have expressed some remorse in relation to your offending – your expressions of regret to your friend Gill Nachun – such remorse seemingly does not extend to the harm that you may have caused many people by your trafficking activities.
87 I also accept that being on remand for the last two-and-a-half years or so is perhaps more onerous than undergoing sentence, as you do not have access to all the various activities that you would if undergoing a sentence. Furthermore, I also accept that you experienced difficult times during the 2015 riots at the Melbourne Remand Centre which caused you to be transferred to Barwon Prison, in lockdown, despite not being involved in the riots.
88 I also accept that you have been diagnosed with depression and symptoms of Major Depressive Disorder, and that you suffer from emphysema, asthma and tuberculosis. In those circumstances, I do accept that your incarceration will be more difficult because of those psychological and physical problems. I also accept that when being on remand for the last two-and-a-half years you have been a model prisoner and became a peer educator.
89 I will take these matters into account in coming to a sentence.
90 However, I do consider it early days to come to any view as to whether your apparent decision and appreciation that all drugs are bad and that you intend to avoid drugs in the future, including hallucinogenic drugs, which you now appreciate cause significant problems. Although I accept that you seemingly overcame your Heroin addiction after being released from prison in 2001, I am not persuaded that given your long history of drug offending and re-offending, that your prospects of rehabilitation are anything more than “extremely guarded”. Seemingly, you do have a wide range of friends who, no doubt, will probably be supportive on your release from prison, and it is to be hoped that on release you may be able to resume the type of work that you have been doing prior to your remand.
91 Now, turning to you, Cahir, you appear also to have had a comfortable childhood with no exposure to domestic violence or sexual abuse. Furthermore, you attended school until the completion of Year 9 and then became engaged in a variety of different types of work before becoming largely unemployed for a number of years through your drug habits. I do accept that leading up to the time of your arrest you had significant drug issues, maybe best evidenced by the comments of your mother, and your weight of 54 kilograms at the time of arrest. I also accept that in relation to your offending – particularly Charge 10, such activities were not for financial gain but, rather, to facilitate your need for drugs.
92 Prior to the subject offending, you were convicted in September 1993 of trafficking Cannabis and, in 1995, of cultivating a narcotic plant (Cannabis), possessing Cannabis and using Cannabis. At no time have you ever been sent to prison – the first offence resulted in your being sentenced to four months’ imprisonment, wholly suspended for eighteen months. I consider such earlier offending to not be of great significance and, again, represented, in my view, your ongoing problems at that time with Cannabis.
93 However, it must be borne in mind that Charge 10 involves you trafficking in a commercial quantity of MDMA. As already recorded, a commercial quantity of pure MDMA is 100 grams. On 6 January, police found and located 557.5 grams of MDMA at your Powlett Street premises. Analysis revealed the total pure amount was 153.7 grams.
94 Furthermore, various rooms at those premises had been set up for the extraction process and your fingerprints were found on items located at the Aughaderry Road premises and at the Watts Street premises, consistent with your involvement in the manufacture of MDMA. Such offending can only be considered serious. Charges 11 and 12 relate to you possessing, respectively, drugs of dependence – Cannabis and Mescaline – both of which the prosecution accept was for personal use. In my view Charges 11 and 12 highlight the state that you were in leading up to your arrest for this offending.
95 Of course, your activities were under the direction of McKenzie and there is no particular evidence that would suggest that you were in any way involved in the planning of the drug enterprise.
96 Perhaps the most significant matter involving your offending is the remarkable efforts that you have employed since your arrest to overcome your drug problems and re-establish yourself in the community. Over the last approximate two-and-a-half years, you have undergone drug urine screens, which would generally indicate that you were clean for drugs, you have sought out and attended the psychologist, Mr Michael Bilyk, on ten separate occasions, to assist you in your management of anxiety and depression, and to regulate your mood and improve your sense of well-being. You have had eight sessions with Mr John Anderson for counselling and care recovery at Cohealth and, in particular, have been attending (approximately 120 times) since 14 January 2015, the organisation “Ongoing Change” to, again, help you participate back in the community.
97 Both your sister and your mother have expressed, in very strong terms, the turnaround that you have made since January 2015. Furthermore, your present employer at Vicinity Centres describes you as an excellent employee.
98 You have the support of your family and partner, and have also the work to perform in your parents’ business. It was submitted that you have excellent prospects of rehabilitation. All the indications since your arrest approximately two-and-a-half years ago would indicate that you have attempted to meaningfully turn your life around. Of course, there is always the risk you will relapse given your long history of drug use, but I do consider that your prospects of rehabilitation are reasonably good.
99 I intend to convict you of all offences. Given the nature and the extent of your offending relative to Charge 10, issues of denunciation and general deterrence are relevant in determining an appropriate sentence. I consider that specific deterrence, although relevant, is not as powerful given your activities since your arrest.
100 In mitigation of your sentence, I accept that your relatively early plea of guilty has saved the time and cost of a trial, and a committal, which I have already stated, most probably would have been of some length given the number of witnesses involved in the matter. Furthermore, I do accept that you are genuinely remorseful for your offending and,, as I say, are attempting to put your life back in order.
101 As I have already indicated, although your offending in relation to Charge 10 is of a serious nature, I accept that such offending was to feed your addiction, and in such circumstances accept that, to some degree, there is a lessening of your moral culpability. As accepted by the prosecutor in this matter, there is no evidence that you were living an extravagant or rich lifestyle as a result of your offending.
102 I do consider, because of the nature of the offending relative to Charge 10, you must serve an immediate term of imprisonment. Given the matters which I have alluded to, I consider that the offending, although not necessarily at the lower end of the range is seen no more than midway offending. I intend to shorten your non-parole period in relation to the sentence in order that you can return to your partner and family, and carry on with your rehabilitation.
103 Mr McKenzie, please be upstanding. I intend to sentence you in relation to the offences under the Victorian legislation as follows:
(a)In relation to Charge 1, you are convicted and sentenced to ten years’ imprisonment;
(b)In relation to Charge 2, you are convicted and sentenced to six years’ imprisonment;
(c)In relation to Charge 3, you are convicted and sentenced to three years’ imprisonment;
(d)In relation to Charge 4, you are convicted and sentenced to one year’s imprisonment;
(e)In relation to Charge 5, you are convicted and sentenced to two years’ imprisonment;
(f)In relation to Charge 6, you are convicted and sentenced to one year’s imprisonment;
(g)In relation to Charge 7, you are convicted and sentenced to one year’s imprisonment;
(h)In relation to Charge 8, you are convicted and sentenced to one year’s imprisonment;
(i)The sentence of ten years’ of imprisonment in relation to Charge 1 will be the base sentence and I order that five years of the sentence in relation to Charge 2, one-and-a-half years of the sentence in relation to Charge 3, six months of the sentence in relation to Charge 4, one year of the sentence in relation to Charge 5, six months of the sentence in relation to Charge 6, and six months of the sentence in relation to Charge 8 be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1. The sentence in relation to Charge 7 will be served concurrently with all other sentences;
(j)The total effective sentence in relation to the Victorian offences is nineteen years and I order that there be a non-parole of twelve-and-a-half years.
104 In relation to the Commonwealth offence, I sentence you as follows:
(a)In relation to Charge 9, you are to be sentenced to ten years’ imprisonment with a non-parole period of six years;
(b)I direct that the Commonwealth sentence commence ten years from this date.
105 The total effective sentence for all offending is twenty years, with a non-parole period of sixteen years.
106 I declare that you have served 967 days in pre-sentence detention in relation to the offences and such period is to be administratively deducted from your sentence.
107 In relation to the Victorian offences, I declare that save for your pleas of guilty to those offences, I would have ordered a period of imprisonment of twenty-five years.
108 I will grant the disposal and forfeiture orders as sought by the prosecution. I also direct that there be entered in the records of the Court in respect of Charges 1, 2 and 9, the prisoner, McKenzie, was sentenced as a serious offender within the meaning of Part 2A of the Sentencing Act 1991.
109 Please be upstanding, Mr Cahir. I sentence you as follows:
(a)In relation to Charge 10, you are convicted and sentenced to four years’ imprisonment;
(b)In relation to Charge 11, you are convicted and sentenced to six months’ imprisonment;
(c)In relation to Charge 12, you are convicted and sentenced to six months’ imprisonment.
110 The base sentence is the sentence in relation to Charge 10 and I order that the sentences in relation to both Charges 11 and 12 be served concurrently with the sentence in relation to Charge 10.
The total effective sentence is four years and I direct that there be a non-parole period of two years.
111 I declare that save for your pleas of guilty in relation to these offences, I would have ordered a period of imprisonment of six years.
112 I will grant the disposal and forfeiture orders sought by the prosecution.
113 MR GRAY: Your Honour, just briefly, in terms of my reckoning of the presentence detention for Mr McKenzie, is slightly different in the sense that I'm instructed it's 967 days and he was - - -
114 HIS HONOUR: You're quite right, that's my writing. What did I say? I said something a lot less, did I?
115 MR GRAY: No, only 960, Your Honour. It's just to correct from the - - -
116 HIS HONOUR: Sorry, it's my seven I read as a naught. Yes, it is no doubt 967 days.
117 MR GRAY: Yes, Your Honour, and that is from 4 December of the - - -
118 HIS HONOUR: No, I accept that. I roughly worked it out.
119 MR GRAY: Thank you, Your Honour.
120 HIS HONOUR: Otherwise there's not problems?
121 MR GRAY: Excuse me, Your Honour. Thank you ,Your Honour, no.
122 HIS HONOUR: Yes, any problems with that? Not about the sentence, I mean not about the contents of the sentence but the order of it.
123 MR HAMEL: Your Honour, the disposal order, we haven't had a chance to discuss them with our client, having only received them, in my case, this morning.
124 HIS HONOUR: But the disposal order was opened when this case was brought on.
125 MR HAMEL: Yes, I know but - - -
126 HIS HONOUR: So what's the difficulty about the disposal order. You're not expecting to keep the drugs, are you?
127 MR HAMEL: I haven't actually - sorry. Yes, my instructor suggesting email our learned friend and email, Your Honour.
128 HIS HONOUR: Well look, perhaps discuss it with your learned friend. I haven't seen it, yet, myself.
129 MR HAMEL: Yes, Your Honour.
130 HIS HONOUR: So they're going to be sent in the - Mark?
131 TIPSTAFF: Yes, Your Honour.
132 HIS HONOUR: Mr Cahir, are your parents here and your partner?
133 MR HAMEL: Sorry, Your Honour.
134 HIS HONOUR: No, I'm just talking to your client. I will allow them to approach the Dock very briefly, at this stage in my presence. Mr McKenzie, anyone you have in court here, you'd like - I mean, I'm not talking about large numbers; anyone in particular? Who is that? Yes, again, I'll allow that person to approach you just for a brief period. As I understand it, there cannot be any contact once your taken down to the cells so in my presence I'll allow that to occur. Thank you.
135 UNIDENTIFIED SPEAKER: Your Honour, in respect to the disposal order and respect to Samuel Cahir, I had an opportunity to read it, before coming up to court, it was emailed 4.36 last night. Where it refers to McKenzie and Cahir, items 1 to 33, there's no objection of disposal. In respect to where Cahir, alone, is named as the accused, items 1 to 54, there's no objection in disposal.
136 HIS HONOUR: I'm happy whatever you people work out, as I haven't seen anything yet. But unfortunately I'm slightly pressed for time now. I'm running late now with the next plea which I have to - ladies and gentlemen I must ask you now to, perhaps, come to end.
137 UNIDENTIFIED SPEAKER: As Your Honour pleases.
138 HIS HONOUR: Mark, just - - -
139 TIPSTAFF: Yes, Your Honour.
140 HIS HONOUR: Just another minute.
141 TIPSTAFF: Yes, Your Honour.
142 HIS HONOUR: Yes, take the prisoners, thank you. Are the parties here in the next matter.
143 TIPSTAFF: Yes, Your Honour, they're just waiting outside.
144 HIS HONOUR: Yes, look, I'll just - Mark, I'll adjourn. Just I'll be outside if I'm needed. Just for a minute or two, I want to get onto the next one.
145 TIPSTAFF: Yes, Your Honour.
146 UNIDENTIFIED SPEAKER: Can I be excused?
147 HIS HONOUR: Yes, by all means. Yes, gentlemen, no doubt as you know I'll just forward it to the printer.
148 TIPSTAFF: Silence please.
149 HIS HONOUR: It'll be a day or so from my experience.
150 MR GRAY: Thank you, Your Honour.
151 HIS HONOUR: Yes, just adjourn briefly, Mark.
152 TIPSTAFF: Yes, Your Honour.
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