R v Mackay

[2007] QSC 201

SUPREME COURT OF QUEENSLAND

CITATION:	R v Mackay [2007] QSC 201
PARTIES:	THE QUEEN v WILLIAM JAMES MACKAY (Defendant)
FILE NO:	Indictment No DC 2604 of 1994 Indictment No SC 118 of 2007
DIVISION:	Trial
PROCEEDING:	Sentence
COURT:	Supreme Court
DELIVERED ON:	1 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	1 August 2007
JUDGE:	Fryberg J
ORDER:	1) Counts 1 and 2 of indictment number 2604 of 1994: one year imprisonment, to be served concurrently with any imprisonment to be served under the 1988 sentence imposed in the District Court.
2) Counts 3 and 6 of indictment number 2604 of 1994: imprisonment for nine months, to be served concurrently with imprisonment for counts 1 and 2 and any imprisonment to be served under the 1988 sentence imposed in the District Court.
3) Counts 4 and 5 of indictment number 2604 of 1994: imprisonment for three months, to be served concurrently with imprisonment for counts 1, 2, 3 and 6 and any imprisonment to be served under the 1988 sentence imposed in the District Court.
4) Both counts in indictment number 118 of 2007: imprisonment for three years, such imprisonment to start from the end of the imprisonment imposed on indictment number 2604 of 1994 and to be suspended after two months for an operational period of 5 years
CATCHWORDS:	Criminal law – Jurisdiction, practice and procedure –
Judgment and punishment – Sentence – Other matters – 1
Prisoner sentenced in 1988 for six years – Released on parole
in 1991 – Committed offence in 1993 – Parole order
continued in force under various corrective services acts – Effect of imprisonment imposed in 2007 on parole order
Corrective Services Act 1988 s165 (repealed) Corrective Services Act 2000 s268 (repealed) Corrective Services Act 2006 s160A(6), s209, s426 10
COUNSEL:	Crown: G Cash Respondent: S Kissick
SOLICITORS:	Applicant: The Walker Pender Group Respondent: Director of Public Prosecutions (Queensland)

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SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

[2007] QSC 201

FRYBERG J

Indictment No DC2604 of 1994	10
Indictment No 118 of 2007
THE QUEEN
v.
WILLIAM JAMES MACKAY
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BRISBANE ..DATE 01/08/2007
SENTENCE
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HIS HONOUR: William James Mackay, you have been convicted on

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your own pleas of guilty of two counts of unlawful possession of a motor vehicle, two counts of stealing, and two counts of receiving. You have also been so convicted of one count of
producing cannabis in excess of 500 grams and another of

producing cannabis.	10
They say there is no fool like an old fool, and you qualify. when you were 16 years of age. You are now 59 years of age.
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Your most recent offending, however, was in 1994, apart from
the drug offences that are before me today. You had
outstanding against you some District Court offences that are
also before me today, but you failed to answer your bail and
you disappeared from sight, and you remained free of offences	30
from 1994 until 2006, 12 years, and you could have stayed free from offences.
The District Court offences upon which you failed to answer
your bail involved two cases of having in your possession	40
stolen motor vehicles. Plainly you knew perfectly well what
you were doing with stolen motor vehicles. You used them for
your own use. You placed false plates on them, you machined
compliance plates and numbers, and you behaved as somebody who
was quite familiar with the nature of motor vehicles and the	50

mechanics of them.
You had possession of a number of keys, and I would infer the 4 SENTENCE 60

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intent was stealing more cars, and you had possession of
stolen property including some number plates which I infer was

also to aid in that enterprise.

In addition, you had possession of a small quantity of	10
toothbrushes, 339 razor blades, and 26 cigarette lighters. Why you possibly needed them I cannot imagine.
Your criminal history is a long history of offences of
dishonesty and those offences are not to be regarded as	20
trivial, even after all of this time.
The drug offences are far more serious, however. You had at
the property where you were growing marijuana two crop sites.
In one of them there were 31 plants, two to two and a half	30
metres high, in another about 100 plants, one to two metres high, many of them in the process of being harvested. The wet weight was some 35 kilograms of plant material.
You had a nursery where you grew the seedlings and the young	40
plants. The whole operation was equipped in a most sophisticated way with lamps, irrigation, fertiliser and the usual impedimenta. You had seeds, drying racks, and bags of dried or drying cannabis.
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The total amount in your possession on that occasion was 8.5 kilograms of dry cannabis, 100 seeds and 35 kilograms of wet material.

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You declined to answer any questions on that occasion. You

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were granted bail after 14 days, perhaps somewhat
surprisingly, but in July the same year, only four months
after the police raided your property, they again visited you
and found you had resumed your activities while you were on

bail. There were four plants and 42 seedlings.	10
This time you did participate in an interview and admitted
that you had been growing there for about a year. At least
you showed some inclination to cooperate in the administration
of justice at that point.	20
Cannabis is a drug that affects people's mental health. you know what schizophrenia is?
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PRISONER: Yes, your Honour.
HIS HONOUR: It is a serious mental illness that ruins a
person's life. When you produce this stuff and give it to
others to sell to young people you are ruining another	40
person's life. It is not a case of simply doing something
that affects your own life, it is doing something that doubles the chances, on the basis of research released only last week, that doubles the chances of someone getting schizophrenia.
That is morally evil.	50

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Your plea of guilty is a timely though not an early one. You

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could have increased the amount by which I would mitigate your

sentence had you pleaded guilty at committal or even earlier.

Your sentencing is complicated by the fact that when you

committed the District Court offences you were on parole. You	10
had been sentenced in 1988 to imprisonment for six years. You
had been released on parole in 1991. At the time when you
first committed an offence on that indictment, the 1st of June
1993, there remained a little under a year of your parole
period to run. Under the Corrective Services Act that was	20
then in force a parole order was made pursuant to section 165.
However, such an order did not automatically come to an end,
at the end of your parole period, if you committed an offence
during that period for which you were subsequently sentenced
to imprisonment. That Act was repealed in 2000 by the	30
Corrective Services Act of 2000, but a transitional provision in that Act, section 268, applied to the parole order made in your favour. It had the effect that your parole continued in force according to its terms as if it had been made under the corresponding provision of the 2000 Act with the changes	40
necessary to make it consistent with that Act and to adapt its operation to that Act. That was the position when that Act in turn was repealed in 2006.
The 2006 Act provided by section 426 that a post-prison	50
community-based release order granted under the 2000 Act and in force immediately before the commencement of the 2006 Act continued in force according to its terms and was taken to be

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a parole order granted under the 2006 Act. A post-prison

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community-based release order included a parole order.

Under section 209 of the 2006 Act your parole order will, if
that analysis of the legislation is correct, automatically be

cancelled by the imprisonment which I intend to impose on you	10
today in respect of the offence committed on the 1st of June
1993.
The effect of that cancellation, if it happens, is that the
time between your release on parole in 1991 and the 1st of	20
June 1993 would count toward the three years that remained under your 1988 sentence. That leaves you with a little under 12 months that you would have to serve of that sentence by reason of the cancellation of your parole.
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Since I intend to sentence you to more than that it doesn't
matter very much whether that is so or not. You will be
required to start serving the balance of that period if the
analysis of the legislation put forward by the Crown and
described by me just now is correct. If that view is not	40
correct then you are not liable to serve any of that period.
It depends upon whether the provision in the 2000 Act that
says that the parole order continued as if made under that Act
is sufficient to satisfy the terms of section 426 of the
current Act of being a post-prison community-based release	50

order granted under the 2000 Act.
I have decided that I need not determine that question for the 8 SENTENCE 60

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reason that in any event any imprisonment which you are
required to serve would be less than 12 months and would be
absorbed into and be concurrent with some of the imprisonment

I am imposing today.

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I set all this out at some length so that if anyone in the Corrective Services Commission or Department at some future time takes a different view then you will have clearly set out the basis upon which I have sentenced you.

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Another technicality which arises is whether I should impose
or should set a date for parole eligibility or parole release.
It seems to me that because of the provisions of section
160A(6) I should not do so. That subsection provides that the

provisions relating to the setting of those dates do not apply	30
if the Court sentences you to a term of imprisonment and makes an order that the whole or part of the term of imprisonment be suspended.
I propose to do that in relation to the sentence which I will	40
impose for the drug offence. Since that term will be part of the period of imprisonment that you will be serving it seems to me that I should not fix either date.
The seriousness of your earlier offending is perhaps mitigated	50

by the time that elapsed without your offending any further,
but aggravated by the fact that you were on parole at the time
of that offending.
It seems to me that taking into account that you will 9 SENTENCE 60

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immediately begin serving, if the Crown is right, a period of a little under 12 months, taking into account the seriousness of the offences, the proper sentence to impose upon you in
respect of Counts 1 and 2 on indictment number 2604 of 1994 in

the District Court is one year imprisonment. On each of	10
Counts 1 and 2 such imprisonment to be concurrent with any imprisonment to be served under the sentence of 1988 imposed in the District Court.
In respect of Counts 3 and 6 on that indictment I sentence you	20
to imprisonment for nine months such imprisonment also to be
concurrent with both the 1988 sentence, if there is any to be
served, and with the imprisonment for Counts 1 and 2, and on
Counts 4 and 5 in the District Court indictment I sentence you
to imprisonment for three months, such imprisonment also to be	30
concurrent with the other periods imposed by me today on that indictment and with the 1988 imprisonment if any is liable to be served.
I have taken into account in deciding what I should impose for	40
the drug offences the totality principle, but it seems to me that it has no operation in the circumstances of this case.
On Count number 1 in Supreme Court indictment 118 of 2007 and
on Count number 2 on both counts, I sentence you to	50
imprisonment for three years, such imprisonment to start at the end of the imprisonment imposed by me in respect of the District Court offences. Such imprisonment is also to be

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suspended after you have served two months of that

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imprisonment for an operational period of five years.

Now what all that means in total is that you will serve a
total of 14 months' imprisonment starting today. I have taken

into account, in setting that amount, the fact that you have	10
already served two weeks. After you have served the 14 months the balance of the imprisonment will be suspended, that balance being two years and 10 months.
It will be hanging over your head for the rest of the period	20
until five years from today elapses. If you commit another
offence punishable by imprisonment during the next five years
you may be returned to this Court and have the suspended
imprisonment activated. Make sure, therefore, that you stay
out of trouble and commit no further offences.	30
Is there anything else? MR CASH: No, thank you, your Honour.
HIS HONOUR: I shall adjourn briefly to enable the Bar table	40
to be reconstituted.

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