McKay v The Queen

[2000] FCA 155

FEDERAL COURT OF AUSTRALIA

McKay v The Queen [2000] FCA 155

CRIMINAL LAW – sentencing – taking into account evidence of offences other than those of which convicted – course of dealing - parity – whether manifestly excessive - possession of heroin for purpose of supply

Drugs of Dependence Act (1989) s 164(3)(b), s 164(3)(d)

R v Prokopiec (1982) 7 A Crim R 116 – Appr
R v Harris [1961] VR 235 – Appr –
R v James (1993) 113 FLR 247 – Appr
R v Pilley (1991) 56 ACR 202 – Appr
R v Watson, (Unreported, Supreme Court of the ACT, 1 July 1999) 55 – Appr
Lowe v R (1984) 154 CLR 606 - Appl
House v The King (1936) 55 CLR 499 – Appr
Loundes v R (1999) 163 ALR 483 - Appl
R v Blaskovic [1999] FCA 1306 - Refd

GARRY KENNETH McKAY v THE QUEEN
A50 OF 1999

SPENDER, HIGGINS & MATHEWS JJ
10 FEBRUARY 2000
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A50 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	GARRY KENNETH McKAY Appellant
AND:	THE QUEEN Respondent
JUDGES	SPENDER, HIGGINS & MATHEWS JJ
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 50 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	GARRY KENNETH McKAY Appellant
AND:	THE QUEEN Respondent

JUDGES	SPENDER, HIGGINS & MATHEWS JJ
DATE:	10 FEBRUARY 2000
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J:

1. On 9 March Garry Kenneth McKay, together with a co-accused, one Darren John West, was arraigned on four counts in the Supreme Court.  The first count alleged that on 25 March 1998 at Canberra, the two accused possessed a prohibited substance, namely heroin, for the purpose of sale to another person or persons.  The second count was an alternative to the first, alleging simple possession of the heroin the subject of the first charge.  The third count alleged that on 25 March 1998 at Canberra, they were in possession of a trafficable quantity of a prohibited substance, namely heroin, again for the purpose of sale.  The fourth count alleged, in the alternative to count three, simple possession of the heroin in count three.  The first and second counts related to 1719 milligrams of heroin located by police in a motor vehicle; the third and fourth counts related to 7030 milligrams of heroin located by police in a domestic residence.  A trafficable quantity is two grams.

2. Each of McKay and West pleaded not guilty to the two counts alleging that they possessed heroin for the purpose of sale, but guilty to the alternative charges of possessing heroin.  The central question at trial…