R v Mackintosh
[2013] VCC 2149
•20 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEE LOGAN MACKINTOSH |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 December 2013 | |
CASE MAY BE CITED AS: | R v. Mackintosh | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2149 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | |
| For the Accused | Mr B. Johnson |
HER HONOUR:
1 Lee Logan Mackintosh, you have pleaded guilty to charges on three indictments. On indictment A10970408 you have pleaded guilty to one charge of cultivating narcotic plants, charge 1, and one charge of possession of a drug of dependence, charge 2.
2 In respect of indictment A10970408.1, you have pleaded guilty to one charge of negligently dealing with proceeds of crime.
3 In respect of indictment A10970408.3, you have pleaded guilty to one charge of trafficking in a drug of dependence.
4 The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. The maximum penalty for cultivation of a narcotic plant for trafficking purposes in these circumstances is 15 years' imprisonment. The maximum penalty for negligently dealing with the proceeds of crime is five years' imprisonment.
5 The prosecution sought orders for the disposal of certain items and for the taking of a forensic sample from you. The making of those records was not opposed.
6 Your offending was detected in the course of a police investigation into the trafficking of methylamphetamine in the Cranbourne and Frankston areas. The main target of that investigation was a person called Lee Hearndon. Mr Hearndon led a drug syndicate. A number of members of the drug syndicate were charged and have been sentenced. You were not part of the syndicate but the telephone intercepts demonstrate that you were in contact with Mr Hearndon.
7 On 1 March Mr Hearndon spoke to a syndicate member who had stolen a ski boat and trailer. The syndicate member told Mr Hearndon to tell the recipient the boat was on its way. On 15 April 2010 police officers executed a search warrant at your home in Somerville. The ski boat and trailer were found near your shed. The boat and trailer were returned by police and the prosecutor says there was ultimately no net loss. Your possession of the ski boat and trailer is the subject matter of charge 1 on indictment A10970408.1.
8 During the search, police found two bags with powder in a microwave oven in a shed. One bag contained white powder. That powder was analysed and was found to contain 70.8 grams of methylamphetamine. A traffickable quantity of methylamphetamine is three grams. Police also found in the shed, amongst other things, a box of methyl sulphonyl methane, which is a cutting agent, a set of scales, spoons, cash and a roll of Alfoil. The methylamphetamine was seven per cent pure. You were charged on the basis that you possessed the methylamphetamine for the purposes of sale. That offending is the subject matter of charge 1 on indictment A10970408.3.
9 Also in the shed was a hydroponic cannabis growing set up. There were 15 plants weighing 1.11 kilograms. That is the subject matter of charge 1 on indictment A10970408.
10 Police also found drying cannabis weighing 511.5 grams which was also found. That cannabis is the subject matter of charge 2 on indictment A10970408. You are charged on the basis that you cultivated and possessed the cannabis for personal use and for sale.
11 In sentencing you, I have taken into account your personal circumstances. You are now 36 years old. It appears that you had a generally happy and stable family life during your childhood, that is apart from a particularly terrible incident when you were about five years old. You witnessed your father fatally defending himself against an attack by your grandfather. Your grandfather was mentally unstable. That incident does not appear to have unduly affected you at the time, although it no doubt leaves you with some residual difficulties.
12 You completed Year 11 at school and then did a cabinet making apprenticeship. You worked in cabinet making until 2008. That year you began working around Australia doing form work for concreting as part of the construction of furnaces. You did that for 18 months and then from 2010 worked for two years doing carpentry for a business. You have not been in paid employment since 2012 due to involvement in these court cases.
13 In 2005 you met your now wife. She had a son who is now nine. You adopted that son in 2007. In that year, you and your wife's six year old child was born. You had a third child in 2010. Since you stopped working, you have looked after the children while your wife has been working full time.
14 You have admitted a limited but relevant prior criminal history. In 1998, you appeared in court in respect of charges of possession of a restricted substance, which I am advised was steroids. You were placed on a good behaviour bond with a requirement that you pay $200 into a court fund. In 2002 you appeared in court in respect of charges of possession of amphetamines and cannabis and using cannabis. You were fined $500 in total. In 2004 you appeared in court on charges of trafficking amphetamine, possession of ecstasy and possession of cannabis. You were convicted and fined $500 in total.
15 A report was tendered on your behalf from Ms Carla Lechner, psychologist, dated 13 December 2013. That report was tendered as Exhibit 1. You told Ms Lechner that you had been using amphetamines since your early 20s. You had started when working long hours. You stopped that use when you met your now wife but resumed again just before you married in 2007. Again at that time you were working long hours. You said you had used cannabis in the context of pain relief after being injured. You told Ms Lechner that you engaged in the sale of drugs to support your own drug use.
16 You also told Ms Lechner that your co‑accused, that is the members of the syndicate, or some of them, were part of a social group that you had known since high school. You said to Ms Lechner that you had now reduced your circle of friends and were mostly socialising with extended family. You told her that you had not used amphetamines since you were arrested and had not used cannabis for two years. The three urine screens tendered as Exhibit 2 indicate no recent drug use. Ms Lechner says that you are suffering from a mild to moderate level of depression, which appears to be mostly reactive to your current situation. You counsel did not seek to rely on the application of Verdins principles.
17 I accept your counsel's submission that there is no connection between the offending on each of the three indictments. I also accept that the charge in relation to the ski boat involves the lowest level of guilty mind, being negligence. I also accept your counsel's submission that your amphetamine trafficking was in the medium to low range of trafficking simpliciter. I consider that your cultivation and possession of cannabis was towards the low end of that type of offending but, given the amount of involved, was not at the lowest end of that range.
18 Your counsel in mitigation particularly relied on your plea of guilty, your remorse, the delay in this matter, your strong prospects for rehabilitation and the context of your resumption of drug use. Your counsel submitted that the appropriate sentence would be a lengthy community correction order or a suspended sentence.
19 You are entitled to a significant discount for your plea of guilty, especially in respect of the charges relating to the ski boat and the cannabis. Your plea of guilty in relation to the amphetamines was made at the last possible time. A trial had been scheduled for April. That trial was aborted because the trial could not proceed as your counsel withdrew. A retrial was scheduled for October 2013. Just before that retrial, you indicated that you would plead guilty. Despite that, you are still entitled to a substantial discount for your plea of guilty in that case. Your pleas of guilty have saved considerable time and considerable expense that would be incurred if trials were held.
20 I accept that your pleas of guilty are indications of your remorse. I accept that you regret the resumption of your drug use and subsequent offending. I accept that you have suffered shame as a result of this offending and that you have accepted your legal responsibility. I accept that you very much regret what you have done and particularly the impact on your family.
21 There has been considerable delay since you were arrested. A large part of that time was taken up in relation to a trial on a related matter. In that trial, you were acquitted of the charge in December 2012 after a successful no case submission. You had had that matter hanging over your head for a significant period, as well as the charges on which I am sentencing you. The delay since April this year was as a result of your delay in entering a plea of guilty but did mean that matters had been hanging over your head longer. It is of significance that you have not reoffended since your arrest. I accept that you have strong prospects of rehabilitation. You have a history of hard work. I accept that you are genuinely committed to your wife and your family. Your acceptance of the responsibility of caring for the children demonstrates that.
22 It is of concern that despite that these matters recommenced and continued your drug use. You also continued to associate with others involved in the use of illegal drugs. It is of concern that you offended again in relation to drugs given that you had already appeared in court in the past in such matters, albeit of a much more minor nature. Those matters, although of a minor nature, should have been a warning to you that there was serious consequences if you became involved, especially in the trafficking of drugs.
23 I accept that you have ceased the use of illegal drugs as a result of your offending being detected. It appears from Ms Lechner's report that your wife gave you an ultimatum after your arrest about continued drug use. Your wife's disapproval of your drug use will no doubt assist in your rehabilitation. It is also encouraging that since ceasing illegal drug use you feel better physically and mentally.
24 I do not consider that the context of your drug use and resumption of drug use in the context of working long hours is a matter of mitigation in itself. Your capacity for and willingness to engage in hard work does support the view that you have strong prospects for rehabilitation as long as you do not resort to illegal drugs to help you work long hours.
25 All those matters operate in mitigation of sentence but not to the extent of removing the need for a sentence of imprisonment to be served immediately.
26 Trafficking in amphetamines is clearly very serious offending. The trade in illegal drugs is an evil one. I accept that you engaged in that trade in order to fund your own drug use but you were still exploiting the vulnerabilities of others. Illegal drug use causes harm to individuals, families and the community. Your own situation and that of your family is reflective of that harm. General deterrence must be given very significant weight in sentencing you for this offence. It is to be hoped that others will be discouraged from engaging in the sale and distribution of illegal drugs by the prospect of going to gaol if they are caught.
27 A sentence of imprisonment for this offending is warranted for the purposes of general deterrence, denunciation, punishment and specific deterrence. In respect of the cannabis offences, I consider that a significant amount was involved. You had this cannabis both for personal use and sale. You had gone to considerable trouble to set up the hydroponic system. You knew, as would be obvious to anyone, that it was clearly illegal. You continued this offending in order to support your own drug use. This is additional offending involving a different illegal drug. The offending is less serious than the charge of trafficking in amphetamines but a sentence of imprisonment is warranted for denunciation, punishment, general deterrence and specific deterrence.
28 In respect of the ski boat and trailer, you have pleaded guilty to negligently dealing with the proceeds of crime. That means you were negligent as to whether or not the property was stolen. It is not clear why you agreed to have the property at your house. It was a foolish decision. You ought not to have become involved at all. That offending is at the lower level of that type of offending but is additional offending and warrants a small degree of cumulation in sentence. I should also add that the cannabis offending warrants a small degree of cumulation in sentence to reflect the fact that a different drug was involved and this was additional offending.
29 In respect of the negligently dealing with the proceeds of crime, again, a sentence of imprisonment is warranted in these circumstances for the purposes of punishment and specific deterrence and particularly importantly, general deterrence. In determining the appropriate sentences and degree of cumulation, I have taken into account the principles of totality and proportionality.
30 I have decided that a sentence of imprisonment is warranted. As I have said, I consider it appropriate that part of that sentence ought to be served. The remainder of the sentence ought to be suspended. The reason I have made that decision is because of the nature of your offending, the delay since your arrest and your significant progress in rehabilitation since that time.
31 Could you please stand up, Mr Mackintosh. In respect of indictment A10970408, on charge 1 of cultivation of a narcotic plant, you are convicted and sentenced to four months imprisonment. On charge 2, possession of a drug of dependence, you are convicted and sentenced to two months imprisonment. Those sentences are to be served concurrently.
32 In respect of indictment A10970408.1, on charge 1 of negligently dealing with the proceeds of crime you are convicted and sentenced to three months imprisonment. On indictment A 10970408.3 on charge 1 of trafficking in a drug of dependence you are convicted and sentenced to 12 months imprisonment. Two months of the sentence on charge 1 of indictment A10970408 and one month of the sentence on charge 1 on indictment A10970408.1 are to be served cumulatively on each other and on the sentence on indictment A10970408.3. The total effective sentence is 15 months imprisonment. You are to serve five months of that sentence. Ten months of that sentence is suspended for a period of 15 months. I declare that you have served three days by way of pre‑sentence detention to be deducted administratively.
33 But for your plea of guilty, I would have sentenced you to a total effective sentence of 22 months with a non‑parole period of 16 months. I make the orders for disposal that were sought and for the taking of a forensic sample from you. I make the orders for the taking of a forensic sample from you because of the seriousness of your offending, that the making of orders was not opposed, and that I consider it to be in the public interest to make such orders.
34 In respect of uplifted summary charge 9, that matter is to be transferred to the Melbourne Magistrates' Court for mention on 25 February 2014 at 10 a.m.
35 Mr Mackintosh, I am required to tell you that when they come to take the sample from you, which will be taken by way of a buccal swab, you are required to cooperate. If you do not cooperate the authorities are entitled to use reasonable force and to take a blood sample. I am sure that you will cooperate with them.
36 PRISONER: Yes.
37 HER HONOUR: You need to understand that during the period of the suspended sentence, which is the next 15 months, you must not commit any offence for which imprisonment would be a potential penalty. If you do, you will be breached on the suspended sentence and brought back before me for resentencing. Unless there are exceptional circumstances, you will be required to serve that ten months imprisonment.
38 It is very important that whenever you are thinking about making a decision to do anything, if it might be illegal, don't do it. To risk ten months of gaol is too much of a price to pay for making another foolish decision.
39 I think you have good prospects for rehabilitation. You have a lot of support. I hope that once you have done your time in gaol you will have the strategies to put in place to avoid any further offending in the future.
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