R v Mackinder

[2021] ACTSC 176

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Mackinder

Citation:

[2021] ACTSC 176

Hearing Date:

2 August 2021

DecisionDate:

4 August 2021

Before:

Burns J

Decision:

See [13]–[15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis being cocaine – where offender’s role was that of courier– where financial motive was reduction in drug debt – no prior convictions – good prospects for rehabilitation if drug addiction addressed

Legislation Cited:

Criminal Code ACT 2002 (ACT) s 603(7)

Parties:

The Queen (Crown)

William Howard Mackinder (Offender)

Representation:

Counsel

D Swan (Crown)

S Whybrow (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Law (Offender)

File Number:

SCC 36 of 2021

BURNS J:

1. William Mackinder, you appear before me today, 4 August 2021, for sentence with respect to an offence of trafficking in a controlled drug other than cannabis being cocaine (CC2020/6839). You entered a plea of guilty in this Court to that charge on 15 June 2021. It is an offence contrary to s 603 (7) of the Criminal Code 2002 (ACT). The maximum penalty for that offence is 10 years' imprisonment, a fine of $160,000 or both.

1. An Agreed Statement of Facts has been provided to the Court and I will not now recite those facts. It is sufficient to provide the following summary. On 5 June 2020 you drove your motor vehicle from Canberra to Sydney, collected a package of cocaine, and then returned to the ACT. Your vehicle was stopped by police in the ACT and searched. Police found the package of cocaine. The cocaine weighed 503.076g and was 77.2 per cent pure.

1. It has been accepted that your role was simply that of a courier. You were a cocaine user and you had built up a substantial debt to your supplier. Your supplier suggested that you act as a courier to bring the cocaine to the ACT in exchange for which, part of your debt would be remitted. There is some suggestion that you may have been subject to veiled threats by your supplier if you did not undertake this task but there is insufficient evidence before me to enable me to find that as a matter proved on the balance of probabilities.

1. The street value of the cocaine was estimated to be in excess of $150,000. The Agreed Statement of Facts notes that you had been under police surveillance for some time and that there was no evidence that you were in the business of supplying cocaine or, indeed, any other drug. There is no evidence that you were aware of the precise quantity of cocaine you were carrying but you must have had a pretty good idea. You saw the size of the package and you handled it, so you knew approximately how much it weighed.

1. I accept that you were not someone involved in purchasing the drug, nor would you have had any role in selling it in the ACT. You were not anticipating receiving any of the profits of sale. Your role, nevertheless, was a vital one in the chain of distribution and the quantity of cocaine was quite substantial.

1. The Crown submitted that you had a financial motive for committing the offence. At one level that is true because you expected a reduction in your drug debt, but you did not expect any profit. You were, in effect, engaged in this enterprise to feed your addiction, albeit that you had already used the cocaine. I see no real difference between someone who engages in work as a courier in order to receive part of the drugs in order to support their own addiction and the role which you played.

1. It must be accepted that this is serious criminal offending warranting a term of imprisonment. The only real question is whether that sentence of imprisonment must be served by way of full-time imprisonment or whether a sentence of imprisonment to be served by way of Intensive Correction Order is sufficient.

Subjective features

1. I note that you are 31 years old and you have no prior convictions. A Pre-Sentence Report notes that you have no history of abuse or neglect in your childhood. You continue to have family support and at the present time you are continuing to live with your mother. You have stable accommodation available to you, albeit that at the present time, that is outside of the ACT. You are, however, able to reside in the ACT if an Intensive Correction Order is made.

1. You separated from your wife in 2019 after an eight-year relationship. This resulted in an increase in your use of drugs and, in particular, of cocaine. You have a stable work history and I note that you have sought counselling in relation to your drug abuse. You regularly attend the gym. The author of the Pre-Sentence Report assessed your risk of re-offending as medium-low.

1. Multiple testimonials were put before me which speak very positively of you and of the fact that the authors of the testimonials perceive this conduct to be out of character. I also have a report from a psychologist, Leesa Morris, dated 16 July 2021. That report suggests that you used cocaine as an avoidant coping strategy prior to the offence after the breakdown of your marriage. The report notes that there are no mental health issues that need to be addressed.

1. I have formed the assessment that you are basically a prosocial person who came to use cocaine in the context of a marriage breakdown. You became addicted and developed a debt to a supplier. You committed the present offence in order to reduce that debt. I am satisfied that you have good prospects for rehabilitation so long as your drug addiction is addressed, and I note in that regard that you have already commenced that process.

1. I take into account your plea of guilty. It was not an early plea of guilty but it, nevertheless, had utilitarian value and I will reduce by approximately 15 per cent the otherwise appropriate sentence based upon your plea of guilty. My starting point in relation to the present offence is a term of three years' imprisonment. I will reduce that by six months because of your plea of guilty.

Sentence

1. I record a conviction on the charge of trafficking in a controlled drug other than cannabis, namely, cocaine. You are sentenced to two years and six months' imprisonment commencing today, 4 August 2021. I note in that regard that you have already served one day of imprisonment but because I intend to impose an Intensive Correction Order it would not be possible, in the circumstances, to backdate the commencement of the sentence.

1. That sentence of two years' and six months imprisonment is to be served by way of an Intensive Correction Order. That order will be subject to the core conditions and there will also be a community service condition requiring you to complete 300 hours of community service within a period of two years as directed by an authorised officer.

1. There will also be a condition that you are to reside as directed by the Director General with responsibility for ACT Corrective Services or that person's delegate.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: