McKinnon v R

Case •

[2020] NSWCCA 106

•

27 May 2020

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: McKinnon v R [2020] NSWCCA 106
Hearing dates: 15 May 2020
Date of orders: 27 May 2020
Decision date: 27 May 2020
Before: Payne JA at [1]; Beech-Jones J at [39]; N Adams J at [40]
Decision:

(1)   Leave to appeal granted.
(2)   Appeal against sentence allowed.
(3)   Sentence imposed by Grant DCJ on 15 April 2019 is quashed and in lieu thereof the following sentence is imposed:
(a)   an aggregate sentence of 8 years, to commence on 2 May 2018 and expire on 1 May 2026, with an aggregate non-parole period of 5 years and 6 months, to commence on 2 May 2018 and expire on 1 November 2023.
(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:
(a)   for count 1, an indicative sentence of 5 years and 6 months with a non-parole period of 3 years and 9 months.
(b)   for count 2, an indicative sentence of 6 years and 6 months, with a non-parole period of 4 years and 4 months, which indicative sentence takes into account the Form 1 matters attached to this count.

Catchwords:

SENTENCING – aggregate sentence – indictment containing two counts – Form 1 offences – Form 1 attached to one count only – identical indicative sentences for each count – Crown conceded sentencing judge erred in taking Form 1 offences into account on both counts

  SENTENCING – appeal against sentence – role of appellate court – resentence – Court of Criminal Appeal to exercise sentencing discretion afresh
Legislation Cited: Crimes Act 1900 (NSW), s 193C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 32(1), 53A(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), 33(3)
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCA 518
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kliendienst v R [2020] NSWCCA 98
R v Nykolyn [2012] NSWCCA 219
Scott v R [2020] NSWCCA 81
Vaughan v R [2020] NSWCCA 3
Category:Principal judgment
Parties: Stuart McKinnon (Applicant)
Regina (Respondent)
Representation:

Counsel:
D Barrow (Applicant)
E Wilkins SC (Respondent)

  Solicitors:
John B Hajje & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/138113
Publication restriction: Nil.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Crime
Date of Decision:
15 April 2019
Before:
Grant DCJ
File Number(s):
2018/138113

HEADNOTE

[This headnote is not to be read as part of the judgment]

Stuart McKinnon, the applicant, was sentenced by the District Court in 2019 having pleaded guilty at the earliest opportunity to two drug supply offences. Two “Form 1” offences were to be taken into account. On appeal, the applicant and the Crown agreed that the primary judge had erred in considering the Form 1 offences.

The Court held, allowing the appeal

Per Payne JA (Beech-Jones J and N Adams J agreeing):

The indicative sentences specified for the two counts were identical and the offending was essentially the same in each case. His Honour did not comply with the legislative requirement to take the Form 1 offences into account with regard to a specific offence: at [16].

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3; Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCA 518; R v Nykolyn [2012] NSWCCA 219 applied.

Error having been established, it is necessary to exercise the sentencing discretion afresh. The duty of the appellate court is to resentence unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed: at [17].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied.

Applicant resentenced to an aggregate sentence of 8 years, with a non-parole period of 5 years and 6 months: at [38].

Judgment

  1. PAYNE JA: On 15 April 2019, the applicant was sentenced by Grant DCJ in the District Court for two drug supply offences, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), following a guilty plea entered at the earliest opportunity: [1]

“Between 2:12 pm and 5:15 pm on 03/03/2017 at CASTLE HILL That Stuart MCKINNON on the 3rd day of March 2017, at CASTLE HILL, in the State of New South Wales, did supply a prohibited drug, to wit, 2440 grams of 3,4-Methylenedioxymethamphetamine [MDMA], being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

Between 12:30 pm and 12:35 pm 30/03/2017 at DARLINGHURST That Stuart MCKINNON on the 30th day of March 2017, at DARLINGHURST, in the State of New South Wales, did supply a prohibited drug, to wit, 2533 grams of 3,4-Methylenedioxymethamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.”

1. I will refer to these offences as “count 1” and “count 2” although in the Local Court notice of committal and in the decision of the sentencing judge they are referred to as “sequence 1” and “sequence 2”.

  1. Attached to the second count were two Form 1 offences which the applicant asked to be taken into account on sentence under s 32(1) of the Crimes (Sentencing Procedure) Act1999 (NSW):

  1. possess prohibited drug (0.016g Testosterone), contrary to s 10(1) of the Drug Misuse and Trafficking Act; [2]

  2. deal with property suspected of being proceeds of crime ($237,000 Cash), contrary to s 193C(1) of the Crimes Act 1900 (NSW). [3]

    2. Referred to as “sequence 3” in the Local Court notice of committal.

    3. Referred to as “sequence 6” in the Local Court notice of committal.

  1. The maximum penalty for each s 25(2) offence is life imprisonment: s 33(3) of the Drug Misuse and Trafficking Act. A standard non-parole period of 15 years applies.

  2. The applicant was sentenced to an aggregate sentence of imprisonment of 11 years, commencing on 2 May 2018 and expiring on 1 May 2029 with a non-parole period of 7 years and 6 months, commencing on 2 May 2018 and expiring on 1 November 2025.

  3. Indicative sentences of 7 years imprisonment with a non-parole period of 4 years and 6 months were specified for each offence.

Facts relevant to the offending

  1. The sentencing judge found that between 13 February 2017 and 3 March 2017 the applicant communicated with an undercover police operative known as “Crystal” by email on encrypted BlackBerry devices. During the communications with “Crystal” the applicant negotiated the sale of 10,000 MDMA tablets for $50,000.

  2. On 3 March 2017, a Mr Giri communicated with “Crystal” and subsequently supplied “Crystal” with 10,000 MDMA tablets. Analysis of these tablets confirmed that they weighed 2,440 grams with a MDMA purity of 12.5%. Later that day “Crystal” met with the applicant in Castle Hill and handed him $50,000. This was the subject of count 1.

  3. Between 7 March and 30 March 2017, the applicant and “Crystal” negotiated the sale of another 10,000 MDMA tablets for $50,000. On 30 March 2017, police stopped Mr Giri and located 10,000 MDMA tablets in his backpack intended for supply to “Crystal”. Mr Giri was arrested. The tablets weighed 2,533 grams, with a MDMA purity of 12.5%. This was the subject of count 2.

  4. On 2 May 2018, the applicant was arrested. During a police search of the applicant’s vehicle $6,250 in Australian currency was seized and a BlackBerry mobile device was located. During a search of the applicant’s residence four vials of Sparta branded testosterone with a combined total weight of 0.016 grams were located. This was the subject of the first Form 1 offence, possess prohibited drug. Police also located $231,450 in Australian currency and a second BlackBerry device. The total amount of cash seized on 2 May 2018 was $237,700. This was the subject of the proceeds of crime offence, which was the second matter recorded on the Form 1.

  5. The sentencing judge found that the applicant was directly involved in negotiating the price and quantity of the MDMA supply in each case and that there was some degree of sophistication because there were multiple players utilising encrypted BlackBerry devices. His Honour found that both offences fell at the mid-range of objective seriousness.

  6. In relation to the Form 1 possession offence, the sentencing judge accepted that the applicant was using the testosterone to train and to assist in the repair of his injuries. His Honour assessed the possession offence as falling at the lower end of the scale.

  7. His Honour could not be satisfied beyond reasonable doubt that the money the subject of the Form 1 proceeds offence was money the applicant had personally derived from the supply of drugs.

Amended notice of appeal

  1. At the hearing in this Court on 15 May 2020 leave was granted to rely on an amended notice of appeal containing only one ground:

“The aggregate sentence imposed upon the applicant is infected by error, by reason of the sentencing judge’s erroneous approach when taking into account the offences on the Form 1.”

Consideration

  1. It was common ground on the appeal that the sentencing judge had fallen into error in failing to apply the Form 1 offences to the second count. The Crown characterised this error as being a failure to impose a higher indicative sentence on the second count. The applicant submitted that the error was either that his Honour increased the indicative sentences on both matters as a consequence of the Form 1 or increased the aggregate sentence as a consequence of the Form 1. Either way of proceeding was an error.

  2. The joint submission of the parties that error was established should be accepted. The sentencing judge did not specify the offence upon which the Form 1 matters were to be taken into account. Although it was earlier mentioned, consideration of the Form 1 only came after his Honour had sentenced the applicant, when his Honour was discussing essentially administrative matters with counsel.

  3. The indicative sentences specified for the two counts were identical and the offending was essentially the same in each case. This is a sufficient basis to conclude that his Honour did not comply with the legislative requirement to take the Form 1 offences into account with regard to a specific offence: Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act, and the guidance offered in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCA 518 and R v Nykolyn [2012] NSWCCA 219 at [32].

Resentence

  1. It is thus necessary to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In this case, having conceded error, the written submissions of the Crown went on to address the resentencing exercise on the basis that the applicant bore an onus of demonstrating that a lesser sentence than that imposed by the sentencing judge was warranted. This is not the correct approach. Having found relevant error, this Court does not assess whether and to what degree the error by the sentencing judge influenced the outcome. In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to resentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed: Kentwell at [35]. In any event, in relation to the specific matter addressed by the Crown, the submissions overstate the effect of the Court’s decision in Vaughan v R [2020] NSWCCA 3. The correct approach to notional accumulation in the context of an aggregate sentence was recently explained in Kliendienst v R [2020] NSWCCA 98 at [74]-[110].

  2. Neither party challenged any of the findings of fact made by the sentencing judge. It is thus appropriate to proceed on the basis of those findings: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32.

  3. In resentencing I have also taken account of the following evidence:

  1. the affidavit of the applicant, affirmed on 17 April 2020;

  2. the affidavit of the applicant’s wife, affirmed on 16 April 2020;

  3. the affidavit of Clare Oxley, affirmed on 28 April 2020. Ms Oxley is the applicant’s ex-wife and the mother of his son. Annexed to her affidavit was a report of Ms Joy Stewart, a psychotherapist that the applicant’s son has visited;

  4. the affidavit of Elie Jason Sirrie, affirmed on 29 April 2020. Mr Sirrie is the solicitor with day to day carriage of the applicant’s matter. Annexed to his affidavit were OIMS case notes from Long Bay Correctional Centre MSPC Area 1 (“MSPC”), where the applicant is being held;

  5. the affidavit of Miriam Rottenberg, affirmed on 15 May 2020. That affidavit was filed shortly following the conclusion of the hearing; and

  6. the affidavit of the applicant in reply, affirmed on 15 May 2020.

  1. The applicable maximum penalties and standard non-parole periods are significant legislative guideposts. The quantities of drugs involved were significant in each count. The applicant played an important role in each drug supply and distanced himself from the handover of the drugs to the buyer.

  2. The sentencing judge assessed each offence as falling at the mid-range of objective seriousness. This Court should make the same finding.

  3. In relation to the first offence, the sentencing judge noted the applicant’s concession that he was higher in the hierarchy than Mr Giri. The sentencing judge found that the applicant actively engaged in negotiations with an undercover police operative via an encrypted BlackBerry to arrange the sale of 10,000 MDMA tablets for $50,000 and was in a position to distance himself from the actual handover of the tablets. In relation to the second offence, the sentencing judge found that the applicant was involved in negotiating the supply of another 10,000 MDMA tablets for $50,000. On both occasions the drugs did not make their way into the community.

  4. In relation to the Form 1 possession of testosterone offence attached to the second count, his Honour found that the offence was at the lower end of the scale. The same finding should be made here. The applicant relied upon testosterone injections to speed up the process of healing from his sports injuries. In relation to the Form 1 proceeds of crime offence attached to the second count, the applicant’s evidence was that he was holding the money for somebody else. The sentencing judge could not be satisfied beyond reasonable doubt that the money was derived by the applicant personally from the supply of drugs. This Court should make the same finding.

  5. The applicant’s subjective case was quite powerful. The applicant stopped attending school when he completed year eight and had been working continuously since then. The applicant had been operating his own fitness business since his early twenties. The applicant has a nine year old son from a previous marriage and a two year old daughter from his current marriage.

  6. At the time of the offending, the applicant had a drug addiction. He had also accumulated an $80,000 debt to a cocaine supplier who offered him the option of paying his debt by minding money for the drug dealer and selling MDMA for him. The two supply offences were designed to reduce the applicant’s drug debt by a total of $10,000. The applicant received $2,500 each time he warehoused cash for the drug dealer. The sentencing judge did not find to the contrary and the applicant’s evidence about his involvement in these offences should be accepted in this Court. The applicant’s principal motivation for the offending found by the sentencing judge, to obtain money, should also be accepted.

  7. The finding of the sentencing judge that the applicant has been doing “good work … whilst he has been in custody” is confirmed by the evidence led on resentence. The same finding should also be made here. The applicant has been working productively within the prison population in providing assistance and support in relation to the physical and mental wellbeing of fellow prisoners. The case notes annexed to Mr Sirrie’s affidavit are uniformly positive. They describe the applicant as “compliant”, “an asset”, and conducting himself “in a polite and well-mannered way”. One note praises the applicant for de-escalating issues in the yard, “stopping anything from getting physical”.

  8. The sentencing judge found that “perhaps now [the applicant] has turned the corner and the period of time in custody has broken his drug addiction”. The evidence filed on resentence amply supports that conclusion.

  9. The evidence on resentence provides a secure basis to find that the applicant continues to enjoy a happy and supportive marriage and has the support of his parents and family. The sentencing judge found that the applicant enjoyed good prospects of rehabilitation. The same finding, that the applicant enjoys good prospects of rehabilitation upon his release from prison, should also be made.

  10. The applicant is 46 years old and 20 years prior to this offending was convicted for the supply of cannabis. He received a Community Service Order. The sentencing judge found that a prior conviction meant the applicant was disentitled to the degree of leniency that a person with no prior convictions would ordinarily receive. I do not regard the prior offending here as significant.

  11. The sentencing judge accepted that the applicant expressed contrition, and that he understood that this offence had caused harm to people, especially young people who use MDMA. The sentencing judge accepted that the applicant had some insight and he genuinely did not want his children to be exposed to the risks of MDMA. His Honour was satisfied that the applicant was contrite and remorseful. The sentencing judge accepted that the applicant was a low risk of reoffending. The same findings should be made here.

  12. Since being sentenced the applicant has remained at the MSPC on a “work hold” because he works as a reception sweeper. The applicant is currently a “B” classification and would ordinarily be held at John Morony Correctional Centre at Windsor, rather than the maximum-security MSPC. The applicant’s role at the MSPC is a “trusted position”. He is required to process new arrivals and to serve breakfast to fellow inmates. The applicant has not had any disciplinary charges or problems since being sentenced. The applicant is entitled to have all of these matters taken into account in his favour.

  13. The applicant, in common with other prisoners in New South Wales during the COVID pandemic, has been in physical isolation from the outside world, although more recently, he has been able to have video contact with his family. The evidence on resentence demonstrates that the effect of the applicant’s imprisonment on his wife and children has been significant. Whilst none of this evidence is evidence of extraordinary hardship, the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing: Scott v R [2020] NSWCCA 81.

  14. The applicant is entitled to a 25% discount on the sentence which would otherwise have been imposed by reason of his early guilty plea. The co-offender Mr Giri’s role was less significant than that of the applicant in relation to the two offences here engaged. Mr Giri, however, faced an additional very serious drug charge. Mr Giri gave evidence that the drugs he warehoused and had provided to the undercover operative had not been provided by the applicant. Mr Giri was sentenced to an aggregate sentence of 9 years with an aggregate non-parole period of 6 years.

  15. It was common ground that there should be a finding of special circumstances in relation to the applicant. That finding should be made because of the applicant’s need for supervision and treatment for his previous addiction to cocaine and underlying mental health problems, and the fact that this is his first time in custody.

  1. I take into account the Form 1 offences on resentence attaching to count 2. The first offence, the possession of testosterone, is at the lower end of the scale. The second offence, relating to money laundering, is more serious and warrants a higher indicative sentence for count 2 compared to count 1.

  2. There should be a reasonable degree of notional accumulation between the indicative sentences. Having regard to all of my findings, and the principle of totality, I propose an aggregate sentence of 8 years, to commence on 2 May 2018 and expire on 1 May 2026, with a non-parole period of 5 years and 6 months, to commence on 2 May 2018 and expire on 1 November 2023.

  3. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:

  1. for count 1, an indicative sentence of 5 years and 6 months with a non-parole period of 3 years and 9 months.

  2. for count 2, an indicative sentence of 6 years and 6 months, with a non-parole period of 4 years and 4 months.

  1. The orders I propose are:

  1. Leave to appeal granted.

  2. Appeal against sentence allowed.

  3. Sentence imposed by Grant DCJ on 15 April 2019 is quashed and in lieu thereof the following sentence is imposed:

  1. an aggregate sentence of 8 years, to commence on 2 May 2018 and expire on 1 May 2026, with an aggregate non-parole period of 5 years and 6 months, to commence on 2 May 2018 and expire on 1 November 2023.

  1. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:

  1. for count 1, an indicative sentence of 5 years and 6 months with a non-parole period of 3 years and 9 months.

  2. for count 2, an indicative sentence of 6 years and 6 months, with a non-parole period of 4 years and 4 months, which indicative sentence takes into account the Form 1 matters attached to this count.

  1. BEECH-JONES J: I agree with Payne JA.

  2. N ADAMS J: I agree with Payne JA.

**********

Endnotes

Decision last updated: 27 May 2020

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Cases Cited

7

Statutory Material Cited

3

R v Nykolyn [2012] NSWCCA 219
R v Barrientos [1999] NSWCCA 1
Kentwell v The Queen [2014] HCA 37