R v McKenna
[2022] ACTSC 346
•4 January 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McKenna |
Citation: | [2022] ACTSC 346 |
Hearing Date: | 17 December 2021 |
DecisionDate: | 4 January 2022 |
Before: | Refshauge AJ |
Decision: | 1. The Good Behaviour Order made by the ACT Magistrates Court on 7 December 2018 for supplying a declared substance is cancelled. The conviction for that offence is confirmed and Reece Angus Robert McKenna is sentenced to 12 months imprisonment, to commence on 22 April 2021 and end on 21 April 2022. 2. The Good Behaviour Order made on 7 December 2018 for possessing a drug of dependence on 21 November 2017 is cancelled. The conviction for that offence is confirmed and Reece Angus Robert McKenna is sentenced to four months imprisonment, to commence on 22 April 2021 and end on 21 August 2021. 3. The Good Behaviour Order made on 7 December 2018 for trafficking in a controlled drug other than cannabis, namely heroin, is cancelled. The conviction for that offence is confirmed and Reece Angus Robert McKenna is sentenced to 12 months imprisonment, to commence on 22 April 2021 and end on 21 April 2022. 4. The Good Behaviour Order made on 7 December 2018 for driving with a prescribed drug in his oral fluid on 6 September 2018 is cancelled. That conviction is confirmed and Reece Angus Robert McKenna is sentenced to two months imprisonment, to commence on 22 April 2021 and end on 21 June 2021. 5. The Good Behaviour Order made on 7 December 2018 for driving with a prescribed drug in his oral fluid on 18 September 2018 is cancelled. The conviction for that offence is confirmed and Reece Angus Robert McKenna is sentenced to two months imprisonment, to commence on 22 April 2021 and end on 21 June 2021. 6. Reece Angus Robert McKenna is convicted of trafficking in a commercial quantity of a controlled drug, being gamma-butyrolactone, and sentenced to two years and three months imprisonment to commence on 22 February 2022 and end on 21 May 2024. 7. Reece Angus Robert McKenna is convicted of obstructing or hindering the investigation of an offence on 22 April 2021 and sentenced to two months imprisonment, to commence on 22 May 2024 and end on 21 July 2024. 8. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Reece Angus Robert McKenna for two years from today, commencing on 4 January 2022 and ending on 3 January 2024, in respect of the primary offence of trafficking in a controlled drug of which he has been convicted and for which he has been sentenced to two years and three months imprisonment. 9. That Order is extended to include the offences of trafficking in a controlled drug other than cannabis (CC2018/8042); supplying a declared substance (CC2018/8040); and obstructing or hindering an investigation (CAN 2021/4218) of which he has also been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 10. It be noted that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 11. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 4 January 2022, until 21 July 2024. 12. Reece Angus Robert McKenna be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 4 January 2024, until the end of the total sentence, 21 July 2024, with a further condition that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 13. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed; b. Reece Angus Robert McKenna be directed to complete the program of treatment set out in the Case Plan prepared by Alcohol and Drug Services and undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court and obey all reasonable directions of any member of that Team or the Court about where he resides, with whom he associates and his attendance from time to time; and c. Reece Angus Robert McKenna comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 14. Reece Angus Robert McKenna be directed to appear in Court on Friday, 7 January 2022, at 11.30 am. 15. Reece Angus Robert McKenna must attend the Court Registry before he leaves the Court precincts today to sign a sealed copy of this Order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in a Commercial Quantity of a Controlled Drug – Obstructing or Hindering the Investigation of an Offence – Breach of Good Behaviour Order – Supplying a Declared Substance – Possessing a Drug of Dependence – Trafficking in a Controlled Drug Other than Cannabis – Driving with a Prescribed Drug in Oral Fluid – Subjective Circumstances – Rehabilitation – Sentence of Imprisonment – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 46K, 62, 63, 71, 80W, 80Y, 85 pt 5.3 Crimes Act 1914 (Cth) ss 16A, 16E, 17A, 19, 302 Criminal Code 2002 (ACT) ss 603, 725 Criminal Code Act 1995 (Cth) s 302.2 Criminal Code Regulations 2005 (ACT) sch 1 pt 1.2 item 86 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 Director of Public Prosecutions v Peddell [2018] VCC 1546 Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305; 269 A Crim R 526 Ibbs v The Queen (1987) 163 CLR 447 O'Brien v The Queen [2015] ACTCA 47 Plunkett v Kroemer [1934] SASR 124 R v BB [2015] ACTSC 304 R v Cahill [2015] NSWCCA 53 R v Crawford (No 1) [2020] ACTSC 245 R v Curtis (No 2) [2016] ACTSC 34 R v Green [2021] ACTSC 356 R v Hancock [2021] ACTSC 52 R v Mathews [2020] ACTSC 364 R v NE [2015] ACTSC 352 R v NF (No 1) [2016] ACTSC 216 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Pearce (1998) 194 CLR 610 R v Thorn [2015] ACTSC 218 R v Verdins [2007] VSCA 102; 16 VR 269 Singh v The Queen [2017] ACTCA 17 |
Texts Cited: | Australian Criminal Intelligence Commission, Illicit Drug Data Report 2019-20 (Final Report, October 2021) |
Parties: | The Queen (Crown) Reece Angus Robert McKenna (Offender) |
Representation: | Counsel C Daly (17 December 2021) and N Deakes (4 January 2022) (Crown) K Ginges (17 December 2021) and A McKenna (4 January 2022) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group (Offender) | |
File Number(s): | SCC 241 of 2021 SCC 242 of 2021 |
REFSHAUGE AJ:
Introduction
The dependence on drugs of all types regularly causes serious problems in the community. It can devastate those dependent, as well as having destructive effects on their families and the community more widely.
The courts, who see many of these disastrous results in the ruined lives of those whose dependency has, as it frequently does, led them into criminal activity, have often remarked on this social tragedy. In this Territory, see, for example, R v NE [2015] ACTSC 352 at [55]–[58], R v NF (No 1) [2016] ACTSC 216 at [38]–[39] and R v Green [2021] ACTSC 356 at [1]–[2].
It may be the case that prohibition is part of the cause of some of these ill-effects, and that a well thought out policy of decriminalisation will be part of the appropriate response to this issue, but that is the role of the policymakers; the courts administer the law and observe the results of the law.
Of course, as with every retail distribution sector, those who distribute illicit drugs through importation or trafficking seek to expand their operations by increasing the sales to current users and by recruiting new users, thus expanding the pernicious effects of the drugs that they traffic.
Reece Angus Robert McKenna must now be sentenced for trafficking a commercial quantity of controlled drugs and obstructing the investigation of an offence, both offences to which he has pleaded guilty.
At the sentencing hearing, the Crown tendered, without objection, the Crown Tender Bundle. In addition to the committal and transfer documents, it contained an Agreed Statement of Facts, Mr McKenna's Criminal History, the certificate of the ACT Government Analytical Laboratory showing the identity and weight of the drugs, a Compact Disc with footage recorded by the body cameras of the arresting police, and documents relevant to the breaches of Good Behaviour Orders, which were made on 7 December 2018 for three years, that the convictions for these offences will constitute.
In addition, it included two documents, being Drug and Alcohol Treatment Assessments (Suitability Assessments), under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act); namely, a Drug and Alcohol Treatment Assessment dated 7 December 2021 prepared by ACT Corrective Services and a Drug and Alcohol Sentencing List Suitability Assessment Report dated 9 December 2021 of Alcohol and Drug Services, together with a Case Plan.
The Compact Disc was played, showing two police officers apprehending Mr McKenna. There were two white bottles containing the drugs which were seized. It further showed Mr McKenna grabbing one of the bottles and tipping part of its contents out. No objection was taken to the playing of it.
Mr K Ginges, counsel for Mr McKenna, tendered a reference dated 29 October 2021 of Mr McKenna’s mother, Ms McKenna, and a Forensic Psychological Report dated 28 November 2021 of Ms Leesa Morris, a highly qualified forensic psychologist and part of the Australian Criminal Intelligence Commission’s Illicit Drug Data Report 2019-20 (Final Report, October 2021).
The contents of none of the tendered material referred to above was challenged, save that the Crown corrected the Agreed Statement of Facts to show that the weight of GHB certified by the Government Analytical Laboratory was 1,180.9 grams, not as stated in the Agreed Statement of Facts.
Both Ms C Daly, counsel for the Crown, and Mr Ginges, provided helpful and thoughtful written submissions and both made valuable oral submissions and engaged with the Court in a worthwhile way. From this material, the following findings can be made.
The facts
In April 2021, police received intelligence that Mr McKenna and two co-offenders were planning to import a drug, 4-hydroxybutanoic acid, commonly known as GHB, into the ACT. As a result, police made enquiries and arranged to meet a Sydney to Canberra bus at the Jolimont Centre in Civic, a bus terminal for such bus trips, on 22 April 2021.
Mr McKenna and his two co-offenders alighted from the bus and police, wearing full standard-issue police uniforms, arrested Mr McKenna. They identified themselves as police. They searched his person and his bags and, in a plastic shopping bag, found two white 1-litre bottles containing a clear liquid suspected of being GHB. As they proceeded to photograph the bottles, Mr McKenna knelt down, grabbed one of the bottles, unscrewed the lid and tipped the bottle over, emptying about half of its contents on the ground.
At the police station the bottles were weighed, the full bottle weighing 1,044 grams and the half empty bottle 528 grams, a total of 1,572 grams.
The ACT Government Analytical Laboratory weighed the liquid, excluding the containers in which the liquid was contained and the packages in which the containers were transported, and found it to be 1,180.9 grams, with a 93.4% purity of gamma-butyrolactone (GBL), which is a closely related solvent and which, once ingested, is converted into GHB in the body.
Both GHB and GBL are classified as controlled drugs which are illegal to possess. They are used to produce a euphoric effect when used in low doses and a sedative effect in high doses and can result in drug dependence, overdose and death. The commercial quantity for GBL is 1 kilogram, which this seizure exceeded.
The proceedings
Mr McKenna was, as noted, arrested on 22 April 2021 and refused police bail. He appeared in the ACT Magistrates Court on 23 April 2021, charged with obstructing or hindering the investigation of an offence, and entered a plea of not guilty. Bail was refused and he was remanded in custody.
The proceedings were adjourned on a number of occasions, no doubt because the certificate from the ACT Government Analytical Laboratory was not available until 28 September 2021. He remained in custody.
On 22 September 2021, the proceedings were adjourned to 15 October 2021. On that day, Mr McKenna was charged with trafficking a commercial quantity of a controlled drug, namely GBL. He pleaded guilty and also pleaded guilty to the other charge.
He was committed for sentence to this Court. He signed a consent for the making of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act.
Mr McKenna appeared in the Drug and Alcohol Sentencing List on 5 November 2021, when he was assessed as eligible to proceed to have Suitability Assessments prepared and a date for sentencing was set. Mr McKenna has remained in custody. He has now spent 258 days in custody, that is, since 22 April 2021, which must be taken into account.
The offences
The two legislatures, the Territory and the Commonwealth, have required a court sentencing an offender to have regard to the matters set out in s 33(1) of the Sentencing Act for Territory offences and s 16A(2) and (3) of the Crimes Act 1914 (Cth) for the Commonwealth offences, though s 33(3) of the Sentencing Act does not limit what the Court may consider in respect of Territory offences. The considerations are generally consistent.
The first of these matters, unsurprisingly, is the nature and circumstances of the offence. In order to understand this, the Court must determine the facts of the offence, which has been done above (at [12]–[16]).
Next, as mandated by the High Court in many decisions, at least since Ibbs v The Queen (1987) 163 CLR 447 at 451–2, is the maximum penalty, which indicates the seriousness which the legislature which created the offence has assigned to it. This allows the Court to compare the actual offence committed to the worst possible case, and, balanced with all of the other relevant factors, provides a yardstick.
In addition, the courts have, in imposing sentences and considering them on appeal, identified factors which are relevant to determining the seriousness of any particular version of an offence. These factors may be aggravating or mitigating and, in addition to any such legislative factors identified by the courts, form part of the current sentencing practice which the sentencing court must consider for Territory offences under s 33(1)(za) of the Sentencing Act. Though there is no Commonwealth counterpart, the nature of the offence will make this also relevant to the sentence for the Commonwealth offence.
Trafficking a commercial quantity of a controlled drug is a crime against s 302.2 of the Criminal Code Act 1995 (Cth) which imposes a maximum penalty of life imprisonment or a fine of $1,665,000 or both. It is, thus, with murder, piracy, detonating an explosive device in a public place, treason, treachery, espionage, committing terrorist acts and certain foreign incursions, the most serious offence in the criminal calendar judged by this maximum.
It can, however, be committed in a variety of ways, as with most offences. Some of the relevant matters have been set out in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at 110; [12], after an extensive consideration of the authorities. In this jurisdiction, the Court of Appeal has considered the similar offence of s 603(7) of the Criminal Code 2002 (ACT) in Bui v The Queen [2015] ACTCA 5 at [41] and it also identified relevant matters.
This is, of course, a Commonwealth offence and courts should be mindful of the consideration that has been given to such offences by appellate courts in other jurisdictions. Hence, the matters referred to in not only Bui v The Queen, but also in R v Cahill [2015] NSWCCA 53 and Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 as well as R v Nguyen; R v Pham must be considered. These have identified factors quite similar and certainly consistent with those articulated by the Court of Appeal in Bui v The Queen. These are identified as follows:
a. The role of the offender and his or her degree of involvement is always very relevant. The more significant or the more involved, the more culpable;
b. In addition, however, the length of involvement and the time over which the trafficking occurs are relevant and can be aggravating factors;
c. While the weight is not determinative, it is relevant and, generally, the more drug involved, the more serious the offence;
d. In addition to weight, the purity of the drug may indicate the level of involvement and the seriousness of the offence, as will the value of the drug and the expected profit from the trafficking;
e. The degree of preparation, planning and scale of the trafficking operation is relevant and the more professional and sophisticated the operation, the more serious the offence;
f. There is no distinction as to seriousness between the drugs trafficked as the legislation makes no such distinction once the commercial quantity is reached; and
g. The purpose of the trafficking is relevant and unless there is evidence to the contrary, it will be inferred that the purpose is for profit.
There seemed no dispute between the parties that Mr McKenna was not a major participant in a commercial or sophisticated operation. He was a user of GHB and it was cheaper to buy in bulk, but this did mean that he purchased more than he needed for his own, personal use, and that he would have sold the balance for financial gain as he, in fact, admitted. How much that would be, was not easily ascertainable from the evidence.
Mr McKenna was using 15–30 ml of GHB each day and up to 60 ml at the weekend, so he would have consumed a litre of GHB in five weeks or less. The price he says he paid for the purchase was $7,000 for the 2 litre bottles, which is comparable to the price in 2019-20, identified in the Australian Criminal Intelligence Commission Report, of $900 to $5,000 per litre, and is just above the midway price for this quantity.
The amount, even assuming that the half bottle he tipped out was part of what he purchased, was at the lower end of the scale. In any event, what he is charged with is 1,180.9 grams, which is a small amount over the minimum commercial quantity. The street value, using the Australian Criminal Intelligence Commission Report's range, though with some difficulties of calculation as it related to 2019-20, would, for half the amount purchased (say 1 litre) be, at the median price at that time of $6.25 for 1 to 1.5ml, between $4,167 to $6,250. That would be enough to purchase another 2 litres possibly in about five weeks, but without any financial gain.
The GBL was of a high purity, however, and may have been able to be diluted so as to sell more. The evidence does not enable the Court to find that such diluted GBL would be able to be sold as effectively and for the same price.
Nevertheless, the agreed assessment of Mr McKenna as a small user/dealer who was unlikely to make a significant financial gain after supplying his own needs seems accurate and he will be sentenced on that basis. There was little sophistication in the operation; indeed, Mr McKenna used his own name to book the trip on the bus from Sydney.
Obstructing or hindering the investigation of an offence is made an offence by s 725 of the Criminal Code 2002, which attracts a maximum penalty of six months imprisonment or a fine of $8,000 or both. It is not seen as a very serious offence judged by those maximums, though it is important not to trivialise it as it is an important part of ensuring the integrity and effectiveness of the criminal justice system.
The test for hindering or obstructing seems relatively low, only requiring that the investigation is made more difficult to conduct: Plunkett v Kroemer [1934] SASR 124. Clearly the destruction of part of the relevant evidence, namely of the subject matter of the first offence, created an obstruction to the investigation where the liquid had not been analysed.
Given, however, that only about a quarter of the liquid was destroyed, the obstruction was quite inadequate and relatively ineffectual. On the other hand, given that the primary offence depended, in part, on the quantity of the drug, it could have had a much more significant effect. Thus, it was by no means of insignificant seriousness as an offence.
Subjective Circumstances
Along with the nature and circumstances of the offence, details of the offender's personal circumstances are an important matter, sounding in a number of paragraphs in s 33(1) of the Sentencing Act and s 16A(2) of the Crimes Act.
Mr McKenna was born 30 years ago, the only son and youngest child of his parents' three children. Just prior to his birth, his family lost their business and their home resulting in some tension and economic stress, but this eventually stabilised. He had a stable and supportive childhood, though there were stressors when his grandfather died and one of his sisters underwent three serious operations.
He has lived with his parents for the whole of his life and he is welcome there. A review of the accommodation by the authors of the Suitability Assessments raised no concerns. He plans to live there when released from custody and his parents are willing to have him reside with them.
He had a somewhat difficult school situation as he lacked concentration and, while mathematics and science caused no problems, he had difficulty with other subjects and found writing essays very difficult. The assessment of the forensic psychologist, Leesa Morris, is that he may have an undiagnosed Attention Deficit Hyperactivity Disorder, inattentive type, and this may require investigation.
He changed schools a number of times and incurred a number of suspensions. He left school during Year 10, but later attempted, ultimately successfully, to complete Year 12 through the Canberra Institute of Technology and Canberra College.
In 2016 he enrolled in, and in 2017 successfully completed, a Certificate IV in Computer Programming, and later in 2018, a Diploma of Software Development, the latter through the Canberra Institute of Technology.
He has had a reasonably significant employment history. His first job was when he was 14 years old, as a part-time target marker in a rifle range for about a year. At 18 years of age he worked in a supermarket for a year.
Finding work in the information technology sector was difficult and he showed determination by gaining his white card in construction and asbestos training and taking up labouring positions. In 2019, he obtained a short-term contract with the National Archives of Australia, a position he enjoyed, but it ended after a brief extension. He gained a position with the Australian Bureau of Statistics of which he was very proud, but the position was delayed and in the absence of direction and activity he relapsed into drug use, though he did take up the position. He struggled, and despite seeking help through the Bureau's Employment Assistance Program, was found to be underperforming and was dismissed.
He returned to labouring, however, and secured a permanent position in February 2020, but after 12 months it became clear that he was not engaging and was not going very well and the job came to an end with his arrest and remand in custody. In the Alexander Maconochie Centre he has requested work and been allocated cleaning tasks.
Mr McKenna engaged in his first relationship at the age of 19, with the second one more recently ending in January 2021, which put added stress on him, also contributing to his relapse into drug use.
Mr McKenna has a long and difficult alcohol and other drug history. He first consumed alcohol at about age 15 and has continued to drink, though in small amounts in social settings. He started smoking tobacco a little earlier and continues to do so, at times smoking 20 cigarettes a day.
His illicit drug use began with smoking cannabis at age 14, initially twice a week, but increasing after about six months to daily use. He has continued to use cannabis until he was remanded in custody.
He commenced using methamphetamine when he was 16 years old. At first he would use only once or twice a month, but his consumption drastically increased by about age 20 or 21, using daily when he had money to purchase it. He generally smoked the drug but occasionally ingested it intravenously, though he has not used it intravenously for the past two years. He has not used the drug since he was arrested. It has, however, been, with GHB, his primary drug of choice.
Mr McKenna first used heroin when he was 18 or 19 years old. He only used infrequently until he was about 27, when he began using daily. This was discovered by his parents in late 2017 following a police raid on their home, where he was living, and which led to the 2018 charges laid against him. He commenced therapy with buprenorphine and ceased using heroin in mid-2020.
He first used GHB in 2021 after the break-up with his then girlfriend, when he turned to its use for comfort. He was soon using heavily, ingesting daily an average of 3 ml every hour, up to 15 to 30 ml per day, and he only stopped when he was remanded in custody, since when he has not used any drugs.
He has tried other drugs from time to time, but none more than occasionally. These include amphetamines when he was 17 or 18 approximately 25 times, MDMA/Ecstasy from about age 18, generally at parties and last used in 2020, cocaine a few times, ketamine once one or two years ago and psilocybin occasionally since about age 16 or 17. He has used some non-prescription medication, last using benzodiazepines in April of 2021, though he had used it somewhat regularly, about 12 times a year before then, to help him “come down”.
Mr McKenna has had some alcohol, tobacco and other drug treatment, some mentioned earlier. He attended Directions Health Services for about a year and found the counselling “a little bit helpful”. He has used opioid maintenance therapy, first with buprenorphine, as noted above (at [50]), but access became difficult with his construction employment. Since his incarceration, he has made a number of efforts to secure a place at a residential drug rehabilitation facility, applying for over four places. He is currently on monthly buvidal injections.
He has been assessed as at a medium to low risk of general reoffending and requiring a moderate level of criminogenic intervention. Ms Morris noted that he will require some particular support to deal with the fact that he is neurodivergent.
Mr McKenna has a Criminal History, which commenced in 2012. He has 16 offences on his record, though five arose out of one incident. All but one appear to be drug or alcohol related, that one being an offence of unlawful possession of stolen property. Of the offences, seven were of possession of drugs and five were of driving with a drug in his oral fluid. Worryingly, he has a prior conviction for trafficking in a controlled drug other than cannabis and one of supplying a declared substance without authorisation.
This is the first time he has been incarcerated, though, on 7 December 2018, he was dealt with for nine offences and among the sentences imposed were five suspended sentences of imprisonment, each with a three-year Good Behaviour Order.
Mr McKenna was cooperative with the preparation of the Suitability Assessment, demonstrating “a willingness to engage openly with the assessor”. He appeared “interested and engaged” and it was reported that “he welcomes the opportunity to participate”.
His mother provided a reference. Whilst, not unexpectedly, it was supportive, it has every appearance of an honest description of the challenges, lapses and poor behaviour he has exhibited, as well as showing that he has been significantly affected by these charges and his present circumstances, expressing shame and regret. He says he understands that “the path ahead will not be easy”. He is described as realising that he has reached rock bottom and he sounds immensely motivated to properly make things better. He appears to have good prospects of success at rehabilitation.
Current Sentencing Practice
Section 33(1)(za) of the Sentencing Act requires a court sentencing an offender to consider current sentencing practice. There is no Commonwealth counterpart for this provision, though the general principles, such as making the sentence just and an adequate punishment (Singh v The Queen [2017] ACTCA 17 at [93]; Director of Public Prosecutions v Peddell [2018] VCC 1546 at [86]) will make this relevant. Some of this has already been addressed above (at [22]–[36]). Some is in the assessment of the nature of the offences, where current sentencing practice identifies relevant factors of aggravation and mitigation.
In addition, it is necessary to consider the actual sentences imposed and the principles which the courts have relied on to reach them. Sometimes useful information can be obtained from statistical information, such as is helpfully contained in the ACT Sentencing Database, though this has significant limitations. See, for example, R v Mathews [2020] ACTSC 364 at [44]–[46].
Mr Ginges annexed to his written submissions a very helpful table of recent decisions from various courts in New South Wales and Victoria of the offence of trafficking in a commercial quantity of a controlled drug where the drug was GHB or GHL. It provides a helpful perspective. Where the offender pleaded guilty, the range of sentences was from approximately one year to four years, with three served in the community.
Included in this list was the Victorian decision of Director of Public Prosecutions (Cth) v Maxwell, where a very helpful additional table was included in the Court's judgment. The table was said to be of comparable sentences. This was particularly helpful as it included sentences from South Australia and Queensland as well. Unfortunately, many of the decisions are not easily accessible, so the Court has had to rely on the tabular summary.
For the cases where the offender pleaded guilty and was sentenced to imprisonment, sentences from six months to five years and four months were imposed. The latter involved the importation of 21,372.8 grams of the drug, well above the commercial quantity minimum and well above the amount that was trafficked by Mr McKenna. The summary of the decisions in the list attached to the submissions of Mr Ginges have all been read and regard will be had to them.
The Court also considered R v Thorn [2015] ACTSC 218, another decision of this Court, on a similar matter. In that case, Mr Thorn imported three amounts of GBL, one of 5.2 kilograms, one some seven days later of 18 kilograms, and a day later, 1.9 kilograms, a total of 25.1 kilograms (though, for some strange reason, the judgment suggests that it was a total of 25.26 kilograms).
Mr Thorn was 38 years old, the youngest of five children and had a troubled childhood, exposed to heavy alcohol abuse. He was removed from his home. He was bullied at school, but his life stabilised in about his 20s. He has a long history of substance abuse. After his arrest, he underwent a rehabilitation program which seemed to be successful, but he relapsed shortly before sentencing, though the Court did not consider it too serious. He was diagnosed as suffering from depression.
The offence was solely Mr Thorn’s operation, but involved some planning and there were three importations. It was found that it was for his own personal use despite the very large quantity. Mr Thorn was described as a man of prior good character with a minor Criminal History.
It seems that this is a somewhat more serious offence, given the quantity and multiple delivery, though without the element of sale which is a more serious element of Mr McKenna’s offence. It is accepted that Mr McKenna's sale was to fund his own use.
Mr Thorn's subjective circumstances are somewhat more mitigatory on balance, though he had engaged in some rehabilitation, but it seems to be a similar case, balancing the differences, though perhaps a little more serious.
Conditional Liberty
As noted above (at [56]), Mr McKenna was sentenced on 7 December 2018 for nine offences. All but one of these resulted in the making of a Good Behaviour Order. For one there is no sentence actually recorded in the criminal history, but the Court was informed today that it may be, in fact, a Good Behaviour Order and that will need to be dealt with later if it is breached by these offences.
While the information shows possession of MDMA, it is not clear that this offence is referred to in the Statement of Facts, though it may be mentioned under another court number. Its seriousness cannot, therefore, be clearly assessed. It is said to have been an offence committed on 7 November 2017, along with four others. The Crown did not ask the Court to consider this matter, but it may need to be dealt with later if it turns out that these offences do breach the Good Behaviour Order, that it might be suggested to have then been made. [Note: The Court subsequently dealt with this breach on 7 January 2022].
Of the remaining offences, one resulted in a fine and two resulted in Mr McKenna being only subject to a Good Behaviour Order for 12 months, which expired before he had committed the current offences. This leaves five offences for which he was sentenced to imprisonment, which in each case was immediately suspended with a three-year Good Behaviour Order. The convictions which the Court will impose will breach those Orders. The offences and periods of imprisonment are as follows:
1. Supply a declared substance without authorisation, namely diazepam, commonly marketed as Valium (CC2018/8040). A person was named as the person supplied, but the attached Statement of Facts did not explain his or her involvement. The police found 1.384 grams of the substance in Mr McKenna’s bedroom. He was sentenced to 12 months imprisonment, suspended immediately, with a three-year Good Behaviour Order.
2. Possessing a drug of dependence, namely methylamphetamine (CC2018/12506). The relevant Statement of Facts was not included in the material provided. Neither counsel drew the Court’s attention to that omission. It is assumed that there was not a large quantity of the drug as the sentence was of four months imprisonment, suspended immediately, with a three-year Good Behaviour Order.
3. Trafficking in a controlled drug other than cannabis, namely heroin (CC2018/8042). The Statement of Facts states that the heroin was found weighing 0.323 grams, well below the trafficable quantity of 5 grams (see schedule 1, part 1.2, item 86 of the Criminal Code Regulations 2005 (ACT)) but some scales were also found and some intercepted telephone messages made it clear that Mr McKenna was selling drugs. He was sentenced to 12 months imprisonment, suspended immediately, with a three-year Good Behaviour Order.
4. Driving with a prescribed drug in his oral fluid (CC2018/12588). Mr McKenna was stopped by police while driving and subjected to a test which showed a drug in his oral fluid. The offence was committed on 6 September 2018. He was sentenced to two months imprisonment, suspended immediately, with a three-year Good Behaviour Order.
5. Driving with a prescribed drug in his oral fluid (CC2018/11696). There was no Statement of Facts supplied, but the same scenario as above seems inevitable. The offence was said to have been committed on 18 September 2018. Mr McKenna was sentenced to two months imprisonment, suspended immediately, with a three-year Good Behaviour Order.
The sentence of imprisonment for driving with a prescribed drug in his oral fluid on 18 September 2018 was ordered to be cumulative as to one month with the period of imprisonment for the earlier offence of driving with a prescribed drug in his oral fluid. As there was no direction recorded in the Criminal History for the other offences, and the Court was not otherwise informed, s 71(1) of the Sentencing Act means that the sentences of imprisonment for the remaining offences were all to be served concurrently. That is consistent with the reference in each record of the sentencing being “suspended…immediately”. Similarly, the Good Behaviour Orders were clearly concurrent.
Upon finding Mr McKenna guilty of the present offences, which the Court must do on his plea of guilty, these Good Behaviour Orders have been breached. Mr McKenna admitted the breaches. They were made when a sentence of imprisonment was suspended.
In this case, there are two consequences. In the first place, the Good Behaviour Orders were a form of conditional liberty. That is an aggravating matter that means that the sentence to be imposed for the current offences will be more severe, as they constitute a breach of the trust imposed on Mr McKenna to be in the community without further offending instead of being in prison: see R v Mathews at [37]–[38].
Secondly, under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) to the Court must deal with the breach. The Court must either impose the sentence that was suspended or re-sentence Mr McKenna.
In approaching this issue, it must be borne in mind, as explained in R v BB [2015] ACTSC 304 at [16], that the response must be proportional to the offences, but that the regime of Good Behaviour Orders must not be undermined by failure to take appropriate action.
In R v Curtis (No 2) [2016] ACTSC 34 at [18], the Court set out some of the considerations that, over time, have been identified as relevant to the decision of the sentencing court as to the appropriate responses to a breach of a Good Behaviour Order. It was there said:
These include the proportion of the term of the Good Behaviour Order that has been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
In this case, Mr McKenna completed about 28 and a half months of the 36 months Good Behaviour Order without further offending. This is 79% of the Order. That is significant.
While he has not successfully rehabilitated, he has made some significant efforts. He completed the counselling of Directions Health Services, which he was directed as a condition of the Order to complete.
His relapse was explained by the break-up of his relationship. While not an excuse, it does suggest that the rehabilitation was not pretence or superficial. Further, his mother, in her reference, noted that involvement with police “was a wake-up call which motivated Reece to follow up on job opportunities”. He was also supported to adhere to his buprenorphine therapy and he completed his Diploma of Software Development and also completed his white card.
Regrettably, however, the offences are similar to those for which he was initially imprisoned and then released with the Good Behaviour Order. They appear to be at least as serious, if not significantly more so.
Some resources, through supervision and rehabilitation, were devoted to Mr McKenna, and it is evident from the success that he did have, that they have not been entirely wasted. It does appear that he has made some success and achieved value from the Good Behaviour Order.
It is further to be noted that Mr McKenna's compliance with supervision by ACT Corrective Services has been satisfactory.
Balancing all of the relevant matters, it seems that the sentence of imprisonment that was suspended should be imposed, but Mr McKenna should be re-sentenced, so as to determine how the sentence should be served.
Consideration
While, for the Territory offences, consideration must be given to the principles and requirements mandated by the Sentencing Act, and for the Commonwealth offence, regard must be given to the principles and requirements mandated by the Crimes Act, the two are not, in substance, inconsistent. The general purposes, as set out in s 7 of the Sentencing Act, are not mirrored in the Crimes Act, though they are, to a large extent, a codification of the common law purposes, but with, perhaps, a greater emphasis, at least expressly, on the interests of victims and the community.
In this case, for both offences, punishment is a relevant consideration, given the seriousness of the Commonwealth offence and the need for protection of the integrity of the criminal justice system with the Territory offence. Similarly, it is appropriate to reflect in the sentence the need to deter others in the community from committing the same or similar offences.
Of course, Mr McKenna should also be deterred, but his good prospects of rehabilitation will, if achieved, reach that purpose much more effectively.
There are no identified victims, though the prospective purchasers of the GBL would be victims, so that consideration is not so directly relevant.
Mr McKenna pleaded guilty to both offences in the Magistrates Court. Insofar as the Territory offence is concerned, it was after the prosecution Brief of Evidence had been provided and following a plea of not guilty. Insofar as the Commonwealth offence is concerned, it was on the day that it was preferred, so it was at the earliest opportunity and entitles Mr McKenna to a very significant discount.
As noted earlier, Mr McKenna has good prospects of rehabilitation and he has taken active steps to engage with agencies and to address his dependency.
While Mr McKenna's childhood was not perfect by any means, it has a marginal effect on how he should now be sentenced. Mr Ginges did suggest that there was some room for the application of the principles established in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32]. The application of those principles was not accepted by the Crown.
It was helpfully submitted by Ms C Daly, counsel for the Crown, that the reason for Mr McKenna's dependency on drugs is relevant, but not that any undiagnosed possible, even likely condition of mental health, such as ADHD, would bring the so-called “Verdins principles” into play.
That submission is accepted. Nevertheless, there is no doubt, on the evidence, that Mr McKenna's impaired executive function, identified by Ms Morris, his negative self-worth, anxiety and struggles at school, which she also identified, his stress of engaging in tertiary studies and his stress over the uncertainty of his job, also identified, and the break-up of his relationship led him into further drug use. This is relevant and can, and should, be taken into account.
It is accepted that Mr McKenna is remorseful and has accepted full responsibility for the offences, though he initially tried to suggest that he was not selling any of the illicit drugs he had imported.
The nature and circumstances of the offences as they have been described above (at [12]–[16]) must be taken into account and also Mr McKenna's personal circumstances as they have also been described. Regard has been given to all of the other matters referred to in these reasons. Having given them very careful scrutiny, the Court is satisfied that, having considered all other available sentences, no sentence other than a sentence of imprisonment is appropriate in all of the circumstances of the case: s 17A of the Crimes Act and s 10 of the Sentencing Act.
There are, of course, a number of sentences to be imposed and special care must be taken in their imposition: see O'Brien v The Queen [2015] ACTCA 47 at [26]; R v Hancock [2021] ACTSC 52 at [108]–[110].
Each offence must be accorded a sentence that is just and appropriate to it: R v Pearce (1998) 194 CLR 610 at 623–4; [45].
In addition, however, the Court must carefully consider whether there are common elements or involvement in the same course of conduct that would justify the whole or partial concurrency of some of the sentences. This does not feature significantly in the Court’s consideration in this case.
The Court must then review the length of the total sentence, which has been done, to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality, but no more than that. The total sentence must not be excessive and must leave open the realistic prospect of reform and hope for Mr McKenna to achieve his goals when he is released into the community.
The Court must also ensure that the sentence does not leave a perception that there is an impunity from commission of multiple offences. To the extent possible, that has been done.
Concern was expressed about the relationship between the sentences for the Territory offences and the Commonwealth offences. Reference was made to the Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305; 269 A Crim R 526, especially at 543–4 [78]. In the Court’s view, the provisions are not as complicated as they may appear, as long as care is taken; thus, s 16E of the Crimes Act provides that the laws of the ACT, inter alia, apply to the commencement of sentences imposed on persons sentenced in this Territory.
That brings into operation ss 62–63 and part 5.3 of the Sentencing Act. This permits a sentence to commence on a day other than the day on which it is imposed; in particular, the sentence can be backdated, commonly to take into account pre-sentence custody. It also permits sentences to be served consecutively, which permits a sentence to commence at the end of an earlier sentence but not later than that. That backdating, however, may only be to a date when the offender was taken into custody for the offence under the Commonwealth Act, thus raising an issue about fictional backdating, but the Court need not consider that in this case as Mr McKenna has been in custody continuously since his arrest.
The deferral of the commencement of a sentence for a Commonwealth offence is possible, but only if it is to be cumulative or partly cumulative on a sentence already imposed or being served: s 19 of the Crimes Act. In this case, the sentence must commence immediately after the end of the earlier sentence or non-parole period, whichever is the earliest. Again, whilst this can cause complications, it will not cause complications where no non-parole period is set.
[His Honour then spoke directly to the offender]
Mr McKenna, please stand.
(1) The Good Behaviour Order made by the ACT Magistrates Court on 7 December 2018 for supplying a declared substance is cancelled. The conviction for that offence is confirmed and you are sentenced to 12 months imprisonment, to commence on 22 April 2021 and end on 21 April 2022.
(2) The Good Behaviour Order made on 7 December 2018 for possessing a drug of dependence on 21 November 2017 is cancelled. The conviction for that offence is confirmed and you are sentenced to four months imprisonment, to commence on 22 April 2021 and end on 21 August 2021. That is to be wholly concurrent on the sentence for supplying a declared substance.
(3) The Good Behaviour Order made on 7 December 2018 for trafficking in a controlled drug other than cannabis, namely heroin, is cancelled. The conviction for that offence is confirmed and you are sentenced to 12 months imprisonment, to commence on 22 April 2021 and end on 21 April 2022. That is to be wholly concurrent on the sentence for supplying a declared substance.
(4) The Good Behaviour Order made on 7 December 2018 for driving with a prescribed drug in your oral fluid on 6 September 2018 is cancelled. That conviction is confirmed and you are sentenced to two months imprisonment, to commence on 22 April 2021 and end on 21 June 2021. That is to be wholly concurrent on the sentence for trafficking in a controlled drug other than cannabis.
(5) The Good Behaviour Order made on 7 December 2018 for driving with a prescribed drug in your oral fluid on 18 September 2018 is cancelled. The conviction for that offence is confirmed and you are sentenced to two months imprisonment, to commence on 22 April 2021 and end on 21 June 2021. That is to be wholly concurrent on the sentence for the first sentence for driving with a prescribed drug in your oral fluid.
(6) You are convicted of trafficking in a commercial quantity of a controlled drug, being gamma-butyrolactone, and sentenced to two years and three months imprisonment to commence on 22 February 2022 and end on 21 May 2024. That is to be cumulative as to 25 months on the sentence for supplying a declared substance. Had you not pleaded guilty, you would have been sentenced to three years and three months imprisonment.
(7) You are convicted of obstructing or hindering the investigation of an offence on 22 April 2021 and sentenced to two months imprisonment, to commence on 22 May 2024 and end on 21 July 2024. That is to be wholly cumulative on the sentence for trafficking in a commercial quantity of a controlled drug. Had you not pleaded guilty, you would have been sentenced to three months and two weeks imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Mr McKenna has requested that a Treatment Order be made. The Court must, then, now consider whether Mr McKenna is eligible, and if so, whether it is appropriate that one be made.
The first question is as to whether Mr McKenna is eligible. That is largely governed by the terms of s 12A of the Sentencing Act. Each issue shall be addressed in turn.
Mr McKenna has been sentenced to seven sentences for which he is to serve a term of imprisonment, four of which are of imprisonment beyond today. For the offence of trafficking a commercial quantity of controlled drug he has been sentenced to imprisonment for two years and three months, which is more than the minimum period for which an offender may be eligible for a Treatment Order, namely one year. The total term of all relevant sentences is three years and three months, which is less than the maximum period of imprisonment for which an offender may be eligible to a treatment order, namely four years.
Mr McKenna is not serving any other sentencing order within the meaning of s 12A of the Sentencing Act.
It is accepted that Mr McKenna will be a resident in the ACT for at least the foreseeable future, that is, the balance of the sentence imposed upon him.
The Suitability Assessment of ACT Alcohol and Drug Service reported that Mr McKenna is likely to have a severe substance abuse disorder and this is strongly supported by the Forensic Psychological Report of Ms Morris. The Court accepts that he is substantially dependent on illicit drugs, namely methamphetamine and GHB.
The Suitability Assessment refers to him having that severe substance abuse disorder at the time of the offending and it is accepted that, on the basis of this assertion and on the basis of his assertions, which were not challenged, that the drugs were, at least in part, for his own use. The Court is satisfied that his dependence on illicit drugs substantially contributed to the commission of the offences.
Mr McKenna has signed a consent form, tendered without objection or challenge, to the making of a Treatment Order. On that basis and the other evidence in this case, the Court is satisfied that the consent he has given to the making of such an Order was given after he had been provided with an explanation of the Treatment Order, including having an opportunity to ask any questions about the order and having those questions answered, which answers he has understood.
The total sentence which has been imposed on Mr McKenna commenced on 22 April 2021 and that, therefore, will be suspended from today if a Treatment Order is made. This means that, to that extent, the sentence is partially suspended, but that does not mean that Mr McKenna is not eligible for a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111].
Accordingly, the Court is satisfied that Mr McKenna is eligible to be the subject of a Treatment Order. The Court now turns to whether it is appropriate to make one, noting that both counsel submitted that it was.
The Suitability Assessments have been carefully considered. They are very comprehensive and have been carefully, professionally and thoughtfully compiled to provide most helpful evidence to the Court. Both recommended that Mr McKenna was suitable for a Treatment Order.
A comprehensive and appropriate Case Plan has been prepared by the Alcohol and Drug Service, which shows how a Treatment Order can appropriately address Mr McKenna's drug dependency and, therefore, how he can serve the sentence of imprisonment in this way.
The Court is not aware of any indication of the unsuitability of Mr McKenna for a Treatment Order, as set out in table 46K of the Sentencing Act, that would require or make it appropriate that the Court decline to make a Treatment Order. Accordingly, the Court is satisfied that Mr McKenna is suitable for a Treatment Order and is satisfied that it is appropriate that one be made.
[His Honour then spoke directly to the offender]
Mr McKenna, please stand again.
The orders of the Court are that:
(8) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you for two years from today, commencing on 4 January 2022 and ending on 3 January 2024, in respect of the primary offence of trafficking in a controlled drug of which you have been convicted and for which you have been sentenced to two years and three months imprisonment.
(9) That Order is extended to include the offences of trafficking in a controlled drug other than cannabis (CC2018/8042); supplying a declared substance (CC2018/8040); and obstructing or hindering an investigation (CAN 2021/4218) of which you have also been convicted and for which you have been sentenced, and which are associated offences of the primary offence.
(10) It be noted that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
(11) The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 4 January 2022, until 21 July 2024.
(12) You are required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 4 January 2024, until the end of the total sentence, 21 July 2024, with a further condition that you accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you including as to urinalysis, counselling and treatment.
(13) For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed;
(b) You are directed to complete the program of treatment set out in the Case Plan prepared by Alcohol and Drug Services and undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court and obey all reasonable directions of any member of that Team or the Court about where you reside, with whom you associate and your attendance from time to time; and
(c) You are to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(14) You are directed to appear in Court on Friday, 7 January 2022, at 11.30 am.
(15) You must attend the Court Registry before you leave the Court precincts today to sign a sealed copy of this Order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Mr McKenna, that is a lot of words. You have not been around the Court so often that you probably understand everything that is said and, accordingly, it is important that I explain in substance what I have said. I am not going to repeat everything that I have said, your counsel can explain that to you if it is necessary.
Basically, what I have said is that the trafficking is a very serious offence. You faced a maximum of life imprisonment which is, of course, for the worst possible case, and yours is not that. It is a very serious offence, nevertheless, and ordinarily that would require a sentence of imprisonment for you to serve. I have assessed that at two years and three months, having regard to all of the other matters that I have referred to.
There is also the other offence that you have committed, which was a serious offence, but not as serious, and that is worth two months imprisonment and that is added on to the end, but it will not make much difference.
You have also breached, by committing these offences, Good Behaviour Orders which allowed you to be in the community and not in custody for similar offences to this, although there were some other offences involved with driving which you have committed in the past as well.
Those Good Behaviour Orders were attached to sentences of imprisonment which were suspended and I have imposed those. So, the time from you being taken into custody on 22 April to now is the time that you have served in prison. That period of time has been served and there is no more prison that is required if you comply with the Treatment Order.
I have made a Treatment Order. That has been explained to you and I am satisfied that you understand it, but in brief terms, what it will mean is this: you have got a program of treatment that will be required of you, that will involve attendance at programs, particularly programs such as SMART Recovery, the Arcadia day program and things like that, which you are to undergo. There will also be requirements for urinalysis. Three times a week you will have to attend Court, just outside here, and provide a sample of urine which will be tested. If you are found to have drugs in that urine, then you will be sanctioned and that can include being sent back to jail.
There will be other programs, counselling and case management that you will have to undergo and that has probably also been explained in general terms to you, and as well the Case Plan was explained, but it will be explained further to you. I will get a report on that of how you are doing and what is happening and you will come back to this Court every Friday for some months and then as things go on and they improve it will be lesser and some of the other obligations will be lesser. The idea of coming back is to see me face to face and to see how things are going. If they are going well, it will be fairly brief. If things are going badly, then we will need to address that.
The purpose of this Court is to get you through this program, if we can, and to lead you into the community drug and crime free. If it means that we have got to send you back to prison for a period of time to say, “this is not working”, then we will do so. If it really all falls apart, then I can impose the sentence that has been suspended and you can be sent back to gaol for the balance of the sentence, that is, two years and some months. I do not say that to scare you, but I say that so that you genuinely understand. You are an intelligent man and understand what is at stake.
Focus on the way in which you can improve, the way in which you can manage and come to terms with your drug dependency and turn away from crime and leave that behind you. It will be difficult. There will be times when it will be tough. I have no doubt that there will be times when you will fail. That will not bring everything to a grinding halt. The Court, as I said, is designed to try and make this work and so there are mechanisms that may mean that you have a period in custody. It may mean further counselling. It may mean further case management. It may mean further appearances in Court. There are a range of things that we can do to deal with that.
When you appear in Court, if there are things that are difficult or that you are finding problematic, raise them with me. I am a Judge, which gives me considerable power. I am not all-powerful, so I cannot solve everything, but it is amazing how I have resources available that can address some of those things. Seek out help before it gets worse, before it festers, before it all fails and you have to be sent back to gaol.
Your case manager from Alcohol and Drug Services and your case manager from Corrective Services will be enormously valuable to assist you. Open up to them. Take them into your confidence. Tell them how things are going and they will help to direct you to ways in which you can manage any problems that you have and also drive you forward to go further and to progress in the program and to get, hopefully, to the graduation at the end.
One of the very important things in this program is honesty. You have got to be honest to your counsellors. You have got to be honest to your case managers. You have got to be honest to the people that you are dealing with, including me, as it is very serious to lie to a Judge, but also be honest to yourself. It is very easy for people to justify what they are doing, to persuade yourself “it wasn’t really that serious”, even though it is. Face up to the consequences of your actions honestly. That will be hard, but every time you do that it will be easier, and it will be easier to avoid falling into a trap again. Honesty is really important.
Take this opportunity. You have got a very short record of criminal activity. You have got a much more significant record of drug dependency, so it will be hard, but you have managed it to date and you did quite well until things fell apart at the beginning of this year. You can get back to that, but it will take you some time. Go through the process. It will be frustrating sometimes because you have heard it before, but it is necessary to go through the process.
I hope that you will take this opportunity. I am satisfied that you will be able to do that, and you have got the support of your parents which will be very useful and very helpful. You have also got the support of the Treatment Team that is associated with this Court and we are all here to try and bring you out as a successful graduate at the end.
I hope you will take this opportunity. I will see you on Friday. You will not have much to report and I hope I have got nothing to report, except that it is all going well and you will get stuck into it. I wish you every good luck. May this be a new year and a good new year for you and a happy new year for your parents.
Mr McKenna, it appears there might be a further offence for which a Good Behaviour Order was made back in 2018, where it was a three-year Good Behaviour Order which will be breached. It will not change anything, but I need to address that and the Crown needs to look it up and if that is right then I will need to make a further order on Friday, but somehow I will be very creative and make sure that it does not interfere with anything. It is just to keep the records correct.
You may be seated.
| I certify that the preceding one hundred and thirty-seven [137] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 13 December 2022 |
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