McKenzie v The Queen - [2018] VSCA 34

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKenzie v The Queen

Details

AGLC: McKenzie v The Queen [2018] VSCA 34
Case: [2018] VSCA 34
Decision Date: 21 February 2018

CaseChat Overview and Summary

McKenzie appealed against his sentence following his conviction for eight state offences and one Commonwealth offence. The primary concern was whether the sentencing judge made errors in considering the time McKenzie spent in pre-sentence detention and in applying state serious offender provisions to a Commonwealth offence. Additionally, McKenzie argued that the cumulative sentences and orders breached the principle of totality and that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues before the court involved the interpretation and application of the Sentencing Act 1991 and the Crimes Act 1914. Specifically, the court needed to determine if the sentencing judge erred by not taking into account McKenzie's pre-sentence detention time and by applying state serious offender provisions to a Commonwealth offence. Furthermore, the court had to assess whether the cumulative sentences and orders violated the principle of totality and if the overall sentence was manifestly excessive. The Crown conceded that an error had occurred in applying the state serious offender provisions to the Commonwealth offence.

The court found that the sentencing judge erred in not considering McKenzie's pre-sentence detention and in applying state serious offender provisions to the Commonwealth offence. The Crown's concession that an error had been made in this regard was accepted by the court. Additionally, the court determined that the cumulative sentences and orders did not breach the principle of totality. However, the court did find that the sentence was manifestly excessive. Consequently, the appeal was allowed, and McKenzie was re-sentenced to 18 years’ imprisonment with a non-parole period of 14 years. This decision was based on the principles outlined in the Sentencing Act 1991 and the Crimes Act 1914.

Orders