DPP v McCabe

[2019] VCC 1808

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-00226

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROWAN McCABE

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JUDGE:

HIS HONOUR JUDGE DEAN

WHERE HELD:

Melbourne

DATE OF HEARING:

21 – 25 October; 28 October; 31 October 2019

DATE OF SENTENCE:

7 November 2019

CASE MAY BE CITED AS:

DPP v McCabe

MEDIUM NEUTRAL CITATION:

[2019] VCC 1808

REASONS FOR SENTENCE

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Subject:

Catchwords:  Traffick in a large commercial quantity of MDMA; 14,069 tablets weighing a total of 5.289 kg; Found guilty at trial; Wholesaler; High moral culpability; Burden of imprisonment; Good prospects of rehabilitation

Legislation Cited:

Cases Cited:  Kim v The Queen [2019] VSCA 149

Sentence:

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Mr J. Shaw with Ms A. Singh

Office of Public Prosecutions

For the Accused

Mr J. Dickinson QC with Mr J. Taaffe

Doogue & George

HIS HONOUR: 

Rowan Lee McCabe, following a trial that occupied six sitting days in this court, you were found guilty by the jury of one charge of trafficking in a large commercial quantity of a drug of dependence contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is life imprisonment and/or a fine of 5000 penalty units.

You have no prior convictions, subsequent convictions or outstanding charges.

The facts giving rise to your conviction concern your possession for sale of 14,069 tablets containing a mixture of MDMA, otherwise known as ecstasy, and another illegal drug of dependence, ethylone.  The total weight of the pills was 5.289 kilograms. 

The charge you were convicted of concerned the MDMA.  The evidence of the drug analyst, Jodie Burke, revealed that the pills contained very low percentages of MDMA.  A large commercial quantity of that drug of dependence in a mixture with another substance is 1 kilogram, and so your offending concerns in excess of five times the large commercial quantity. 

Your offending was disclosed when members of the Victoria Police Drug Taskforce commenced investigations into you in February 2017.  These investigations revealed that you had leased a self-storage unit at Fry's self-storage in Fitzroy in the name of another person, Jordan Mayfield, also a convicted drug trafficker.

On 12 April 2017 investigators gained access to the unit and located within it items for use in drug trafficking such as scales and deal bags, a very large sum of  cash in the order of $250,000 and a large quantity of drug of dependence made up of pills and powder.  An optical surveillance device was installed in the unit which recorded you removing the cash and a quantity of drugs on 25 April 2017.  Other records and CCTV footage revealed that you had access to the unit on a number of occasions in 2016 and 2017.

On 29 May 2017 you were arrested and charged.  On 2 June 2017 a warrant was executed at the unit and the drugs and other items were seized.  The cash seen by investigators on 12 April 2017 was not recovered.  You gave evidence in your own defence denying knowledge of the tablets and providing an account of your admitted movements that was, in my opinion, obviously implausible.  The jury would have had little difficulty rejecting your evidence and the case against you was a strong one.  Whilst this does not aggravate your offending, you have shown no remorse for your crime and the mitigatory effect of a plea of guilty is absent in your case. 

The evidence led at your trial demonstrates that you were engaged in the business of drug trafficking for profit, and the large amount of cash stored by you plainly demonstrates this, as does the fact that you had in your possession over 14,000 ecstasy tablets.  The evidence does not demonstrate whether you were part of a criminal syndicate or other hierarchy, but I accept, as was submitted by the prosecution, that you may be described as a wholesaler.

The principles applicable to sentencing in this case are well established and it is plain that yours is a crime of the utmost seriousness.  In a recent decision of the Court of Appeal in Kim v The Queen [2019] VSCA 149 at paragraph 31 the Court said:

'We wish to make it clear once more that long prison sentences await those who participate in this pernicious trade.  Those lengthy sentences are the occupational risk of the drug dealer and with modern policing techniques, that risk becomes greater by the day.  Should that risk become reality, the principles of general deterrence and denunciation will normally be accorded particular prominence in the sentencing mix.  Those who choose to embark on the business of drug trafficking must understand that they will lose their liberty for an extended period.  It is only in this way that the courts can discourage those lured by greed into an enterprise that is so harmful to our community'.

These principles are clearly engaged in your case.

I will deal with your personal circumstances below, but, whilst you may have been a recreational drug user, your background is one of stability and privilege and the only plausible explanation for your crime is that you decided to offend to earn the large profits available from it.  In my opinion, in such circumstances your moral culpability for your offending may properly be described as high.

You were born on 11 March 1982 and are now aged 37.  You are not married, but your partner is expecting a child to be born in April 2020.  You have one sister and, as I have said, you come from a stable, loving and supportive family.  You were educated to Year 12 level at Haileybury College and completed a Bachelor of Arts at Monash University and a Graduate Diploma in Chartered Accounting.  You are a highly skilled chartered accountant and have held a range of positions of responsibility in large commercial organisations.

I have received in evidence an impressive body of character references and I accept that you are highly regarded by your peers and family.  I have also received in evidence a psychological report of Dr David Demner, disclosing that in 2017 and 2018 you were suffering from an adjustment disorder and depression.  I accept that incarceration may cause these conditions to re-emerge and, if so, you will require ongoing treatment and support.  I also accept that separation from your new-born child will add to the burden of imprisonment upon you.

However, your counsel informed me that you intend to undertake postgraduate and language studies in prison, suggesting a capacity on your part to adapt to prison life.  You complied with strict bail conditions and have been drug-free since your arrest for a period of in excess of two years.  I accept that your prospects of rehabilitation are good and specific deterrence is not a prominent sentencing factor in your case.

In a result the sentence of the court is as follows –

On the charge of trafficking in a large commercial quantity of drug of dependence you are convicted and sentenced to be imprisoned for 11 years.

I direct that you serve 7 years imprisonment before becoming eligible for release on parole. 

I declare that you have served 37 days by way of pre-sentence detention. 

I declare pursuant to the relevant provisions of the sentencing act that you are a serious drug offender and that entry will be made in the record of the court.

I have made the ancillary orders sought by the prosecution.

Are there any further orders required, Mr Shaw?

MR SHAW:  No, Your Honour.

HIS HONOUR:  Mr Dickinson?

MR DICKINSON:  No, Your Honour.

HIS HONOUR:  Thank you.

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