McKenzie v The Queen
[2018] VSCA 34
•21 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0184
| JOHN CONWAY McKENZIE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 January 2018 |
| DATE OF JUDGMENT: | 21 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 34 |
| JUDGMENT APPEALED FROM: | DPP v McKenzie (Unreported, County Court of Victoria, Judge Parrish, 28 July 2017) |
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CRIMINAL LAW – Appeal – Sentence – Serious drug offender – Eight State offences and one Commonwealth offence – Sentence of 20 years’ imprisonment with non-parole period of 16 years – Whether sentencing judge erred in failing to consider pre-sentence detention and in applying State serious offender provisions in relation to Commonwealth offence – Crown concession – Error established – Whether individual sentences and orders for cumulation breached principle of totality – Whether sentence manifestly excessive – Appeal allowed – Re-sentenced to 18 years’ imprisonment with non-parole period of 14 years – Sentencing Act 1991 pt 2A – Crimes Act 1914 (Cth) s 19(3)(d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Ellinghaus & Lindner |
| For the Respondent | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA:
COGHLAN JA:
On 6 June 2017, the applicant pleaded guilty, in the County Court, to the charges set out below. On 28 July 2017 he was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence — large commercial quantity
[Drugs, Poisons and Controlled Substances Act 1981 s 71]
Life 10 years Base 2 Trafficking in a drug of dependence — commercial quantity
[Drugs, Poisons and Controlled Substances Act 1981 s 71AA]
25 years 6 years 5 years 3 Trafficking in a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 s 71AC]
15 years 3 years 1 year and 6 months 4 Trafficking in a drug of dependence 15 years 1 year 6 months 5 Trafficking in a drug of dependence 15 years 2 years 1 year 6 Trafficking in a drug of dependence 15 years 1 year 6 months 7 Possessing a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 s 73]
1 year or 30 penalty units 1 year Nil 8 Knowingly deal with the proceeds of crime
[Crimes Act 1958 s 194(2)]
15 years 1 year 6 months 9 Importing a commercial quantity of a border controlled drug
[Criminal Code (Cth) s 307.1(1)]
Life or 7,500 penalty units 10 years Sentence to commence on 28 July 2027 Total Effective Sentence: State offences: 19 years’ imprisonment
Commonwealth offence: 10 years’ imprisonment
Total: 20 years’ imprisonment
Non-Parole Period: State offences: 12 years and 6 months’ imprisonment
Commonwealth offence: 6 years’ imprisonment
Total: 16 years’ imprisonment
The Record of Orders made in the County Court discloses that on charges 1, 2 and 9 the applicant was sentenced as a serious offender pursuant to s 6F of the Sentencing Act 1991. As will be seen, that was an error, insofar as it purported to apply the serious offender provisions of the State Act to a Commonwealth offender.
By Notice of Appeal dated 25 August 2017 the applicant seeks leave to appeal on the following grounds:
1.The learned sentencing Judge erred in the exercise of his discretion in directing that 5 years of the sentence of 6 years’ imprisonment imposed on charge 2 be served cumulatively upon the other periods of imprisonment the subject of the orders for cumulation, and upon the sentence imposed on charge 1.
2.The learned sentencing Judge erred in the exercise of his discretion in imposing sentences upon the State offences in breach of the sentencing principle of totality.
Particulars:
(i) The applicant refers to and repeats Ground 1 herein;
(ii)The learned sentencing Judge adopted a ‘mechanical approach’ in directing that 50% of the sentences imposed on charges 3, 4, 5, 6 and 8 be served cumulatively upon each other, upon 5 years of the sentence imposed on charge 2, and upon the base sentence.
3.The total effective sentence imposed, namely 20 years’ imprisonment, is in all the circumstances of the case manifestly excessive.
Particulars:
The applicant refers to and repeats Grounds 1 and 2 herein.
4.The learned sentencing Judge erred in directing that the Commonwealth sentence on charge 9 commence on 28 July 2027 in breach of section 19(3)(d) of the Crimes Act 1914 (Cth).
5.The learned sentencing Judge erred in directing that the non-parole period set on charge 9 commence on 28 July 2027 in breach of section 19(3)(d) of the Crimes Act 1914 (Cth).
Circumstances of the offending
The applicant was the leader of a criminal syndicate that was involved in the importation of 3,4‑methylenedioxy–N–methylamphetamine (‘MDMA’) from Germany. The syndicate was also involved in the manufacture and trafficking of MDMA, 3,4‑methylendioxy‑amphetamine (‘MDA’) and N,N‑Dimethyltryptamine (‘DMT’).
MDMA, MDA and DMT are all scheduled drugs of dependence pursuant to the Drugs, Poisons and Controlled Substances Act1981.
At the time of the offending, the applicant was 55 years old and lived at Watts Street, Box Hill. He owned a business, Psyclone Tents, that imported and sold canvas tents.
The applicant and a co-offender, Tristan Boyle, used mobile phones, face-to-face meetings and internet–based encrypted communication applications to traffick drugs, and to conceal the operations of the syndicate.
The syndicate successfully imported at least four kilograms of mixed liquid MDMA, contained in four wine bottles. The liquid MDMA was placed in dishes and heated in order to evaporate the excess liquid and expose high purity MDMA crystals.
Operation SEADRAGON was an investigation that targeted the syndicate using telephone intercepts, physical surveillance and optical devices. Telecommunication intercept warrants in relation to the applicant’s mobile phone, and that of Boyle, were utilised.
Operation SEADRAGON established that the applicant:
(a) rented a house at Watts Street, Box Hill;
(b) rented and accessed a storage unit at a National Storage facility at 55 Lexton Road, Box Hill North;
(c) owned a property on Aughaderry Road, near Berrimal; and
(d) possessed keys to numerous post office boxes, including PO Box 191, Blackburn; PO Box 8203, Camberwell North, and controlled PO Box 252, East Melbourne.
The intercepts of the applicant’s phone provided the following information:
(e) the post office boxes were used to receive packages of imported drugs of dependence;
(f) the applicant rented the post office boxes using the personal details of his associates;
(g) the applicant manufactured drugs at his properties in Watts Street and Aughaderry Road, and trafficked drugs to other syndicate members; and
(h) the applicant made numerous phone calls to individuals using coded language that referenced the manufacture and trafficking of drugs of dependence.
Charges
On 4 December 2014, police executed a search warrant upon the applicant’s residence at Watts Street, Box Hill. There they found a total of 2,542 milligrams of lysergic acid diethylamide (‘LSD’). On the same day, police also executed a search warrant on the storage unit at Box Hill that was rented by the applicant. A total of 299 milligrams of pure LSD was located there. Also recovered from the storage unit were five vials containing 25 millilitres of ergometrine — a chemical used in the manufacture of LSD. Police executed a further warrant at the applicant’s property in Aughaderry Road, where they located 329 milligrams of LSD of undetermined purity. As a result of the above searches, a total of at least 2,841 milligrams of pure LSD was discovered. A large commercial quantity is 150 milligrams pure (charge 1).
The same searches yielded 178.6 grams of pure MDMA from the Watts Street residence and 14.2 grams of MDMA (purity undetermined) from the storage unit. A commercial quantity of MDMA is 100 grams pure. Police also located scientific glassware that had been used in the manufacture of MDMA and a pill binding agent at the Aughaderry Road address. Charge 2 encompassed the possession of not less than a commercial quantity of MDMA and the manufacturing process of converting MDMA from liquid to crystal form, as well as the ongoing trafficking business revealed via the telephone intercepts.
The storage unit also contained 74 grams pure of DMT. A traffickable quantity is 0.5 grams. Scientific glassware was discovered at the Aughaderry Road address that had been used in the manufacture of DMT. Telephone intercepts revealed trafficking activity in relation to DMT (charge 3).
An amount of three grams of MDA was discovered at the Watts Street residence. A traffickable quantity is three grams. Sassafras, a precursor needed for the production of MDA, was located at the storage unit. Charge 4 represents the ongoing manufacture and trafficking of MDA.
Cocaine in the amount of 38.5 grams was located across the applicant’s properties. A traffickable quantity of cocaine is three grams (charge 5).
Charge 6 covers 13.8 grams of 4–Bromo–2,5–dimethoxyphenethylamine (‘2C‑B’ also known as ‘Nexus’), discovered during the execution of search warrants on 4 December 2014. A traffickable quantity of that substance is three grams.
Charge 7 covers a number of other drugs found at the applicant’s various premises, including THC, ketamine, MDEA, methylamphetamine, MDPV, 2CI, methylone, JWH-200, JWH-073, 5-DMT and mescaline.
Charge 8 relates to $176,950 in cash found at the applicant’s Watts Street residence, and at the storage unit.
A separate search of PO Box 191, Blackburn, was conducted and police found two port bottles containing 2,173.4 grams of MDMA (1,923.5 grams pure). A commercial quantity of MDMA is 500 grams pure. The bottles originated from Germany (charge 9).
Error established — Charge 9
Senior counsel for the respondent accepts that the applicant’s complaint made in Ground 4, and repeated in Ground 5, has been made out. He concedes that the State non-parole period of 12 years and six months will, because of the effect of pre-sentence detention, have been served not on 28 July 2027 (which is the commencement date specified for the Commonwealth sentence on charge 9) but on a date 967 days before that date. There would therefore be a breach of s 19(3)(d) of the Crimes Act 1914 (Cth) because that sub-section provides:
(d)if a non-parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
As noted earlier, the applicant drew attention to the fact that he had been erroneously sentenced on charge 9 as a serious drug offender, in accordance with State law. Again, as noted earlier, that submission must be accepted. Although charge 9 itself is a drug offence, and may therefore be used as a qualifying offence in relation to a person being sentenced for a Victorian drug offence, the serious offender provisions of the Sentencing Act 1991 do not apply to those being sentenced for Commonwealth offences. The sentencing of Commonwealth offenders is governed by the Crimes Act 1914 (Cth). The sentencing judge’s application of the principles set out in Pt 2A of the Sentencing Act 1991, including the declaration that the applicant was sentenced as a serious drug offender on that charge, were in error, and vitiated that component of the sentence.
Because of those two errors, the applicant falls to be resentenced on charge 9, at the very least.
Grounds 1 and 2
These grounds were argued together. The applicant submitted that even if the sentence of six years’ imprisonment on charge 2 was within range, the cumulation of five years of that sentence upon the sentence on charge 1 was excessive.
The respondent drew attention to s 6E of the Sentencing Act 1991 (Vic), which provides that every sentence of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise directed by the Court, be served cumulatively.
It has long been accepted that even when sentencing serious offenders, the principle of totality is not to be disregarded. Of course, there are restraints upon the application of that principle in the face of s 6E, as was understood in relation to its predecessor.[1]
[1]See R H McL v The Queen (2000) 203 CLR 452; Gordon v The Queen [2013] VSCA 343 [74].
In this case, the applicant was sentenced to 10 years’ imprisonment on charge 1. That charge involved the applicant trafficking a large commercial quantity of LSD. He had in his possession almost 19 times the large commercial quantity applicable to that drug.
Although complaint was made under Ground 3 that the total effective sentence on charge 1 was manifestly excessive, that point was never seriously pressed.
The offending in charge 2 related to trafficking a commercial quantity of MDMA. The applicant possessed 178.6 grams of MDMA pure, with a further 14.2 grams of undetermined purity. It was further alleged that, in relation to this charge, he had been involved in the manufacturing process and actual trafficking of MDMA. The traffickable quantity of MDMA is 100 grams pure. It follows that the trafficking related to less than twice the statutory commercial quantity. In these circumstances, we consider that his Honour’s erred in cumulating five years of the six year sentence imposed on charge 2, upon the 10 year sentence on charge 1. That is particularly so in circumstances where the prosecutor had not sought a disproportionate sentence.
In relation to the sentence imposed on charges 3, 4, 5 and 6, his Honour cumulated a further three years and six months upon the sentences imposed on charges 1 and 2. The applicant did not fall to be sentenced as a serious offender in relation to these charges. The most serious of them was charge 3 which involved the trafficking of 74 grams of DMT. The traffickable quantity of that drug is 0.5 grams, but, as was pointed out on the hearing of the application, the large commercial quantity is 500 grams.
The principle of totality is to be applied to the sentences imposed on charges 3, 4, 5 and 6. We are satisfied that in cumulating a total of three years and six months for these charges, his Honour’s discretion miscarried. Each of charges 3 to 7 would ordinarily have been dealt with in the Magistrates’ Court, and would not have warranted the amount of cumulation that was fixed in the present case.
Charge 7 was a rolled up charge encompassing the possession of the balance of illicit substances found at various premises. The sentence of one year’s imprisonment imposed for that offending seems to us to be excessive. That sentence itself had no effect on the total effective sentence because no order for cumulation was made. On re-sentencing, we agree that total concurrency on charge 7 is appropriate, but even so, we consider that a more appropriate sentence for that offence should be fixed.
It was accepted on the hearing of the application that the sentence for charge 8, and the order for cumulation, did not disclose error.
It follows that the applicant falls to be resentenced on charges 2, 3, 4, 5, 6, 7 and 9. It is therefore unnecessary to deal with Ground 3 of the application except as it may relate to charge 7.
Senior counsel for the applicant submitted that it would be appropriate to re-sentence the applicant on the basis of the findings made by the learned sentencing judge, as set out in his sentencing remarks.
His Honour found:
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.
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.
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.
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.
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.
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.[2]
[2]DPP v McKenzie; (Unreported, County Court of Victoria, Judge Parrish, 28 July 2017) [71]–[76].
After dealing with the charges, his Honour said:
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.
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.
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.
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.
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.
I will take these matters into account in coming to a sentence.
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.[3]
[3]Ibid [84]–[90].
On the hearing of the application, senior counsel for the applicant placed particular emphasis upon the applicant’s health, both psychological and physical. Given the findings made below regarding these matters, his prognosis can only be viewed as problematic.
Leave to appeal should be granted and the appeal allowed.
The sentences imposed by the County Court on 28 July 2017 on charges 2, 3, 4, 5, 6, 7 and 9 are set aside. In lieu thereof, the appellant should be resentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence — large commercial quantity
[Drugs, Poisons and Controlled Substances Act 1981 s 71]
Life 10 years Base 2 Trafficking in a drug of dependence — commercial quantity
[Drugs, Poisons and Controlled Substances Act 1981 s 71AA]
25 years 5 years 3 years and 6 months 3 Trafficking in a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 s 71AC]
15 years 2 years 1 year 4 Trafficking in a drug of dependence 15 years 3 months Nil 5 Trafficking in a drug of dependence 15 years 18 months 9 months 6 Trafficking in a drug of dependence 15 years 6 months 3 months 7 Possessing a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 s 73]
1 year or 30 penalty units 3 months Nil
Charge Offence Maximum Sentence Cumulation 8 Knowingly deal with the proceeds of crime
[Crimes Act 1958 (Vic) s 194(2)]
15 years 12 months 6 months Total Effective State Sentence: 16 years’ imprisonment State Non-Parole Period: 12 years Charge Offence Maximum Sentence Cumulation 9 Importing a commercial quantity of a border controlled drug
[Criminal Code (Cth) s 307.1(1)]
Life or 7,500 penalty units 9 years Sentence to commence on 4 December 2023 Total Effective Commonwealth Sentence: 9 years’ imprisonment Commonwealth Non-Parole Period: 5 years
It is noted that the appellant has been in custody since 4 December 2014. The total effective sentence, when the State sentence of 16 years and the Commonwealth sentence of 9 years are combined, is therefore 18 years’ imprisonment, having regard to the commencement date of the Commonwealth sentence being 4 December 2023.
The combined non-parole periods of 12 years on the State sentence and 5 years on the Commonwealth sentence are therefore 14 years, having regard to the commencement date of the Commonwealth sentence being 4 December 2023.
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