Legal Research
Cases
R v McKenna

R v McKenna

Case [2022] ACTSC 346 4 January 2022

Jurisdiction

Sentence of Imprisonment

Drug and Alcohol Treatment Order

Trafficking in a Controlled Drug

Supplying a Declared Substance

Driving with a Prescribed Drug in Oral Fluid

Obstructing or Hindering the Investigation of an Offence

Breach of Good Behaviour Order

Criminal Law

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McKenna

Details

AGLC: R v McKenna [2022] ACTSC 346
Case: [2022] ACTSC 346
Decision Date: 4 January 2022

CaseChat Overview and Summary

In the case of R v McKenna, the appellant, Reece Angus Robert McKenna, was convicted of several drug-related offences, including trafficking in a commercial quantity of a controlled drug, obstructing or hindering the investigation of an offence, and various other drug-related charges. The matter was heard in the ACT Supreme Court, where Justice Harper was the presiding judge. The court was tasked with determining appropriate sentences for McKenna's convictions, taking into account his history of drug abuse, the severity of the offences, and the need for rehabilitation.

The central legal issues before the court were the appropriate sentences for McKenna's multiple drug-related convictions and the imposition of a Drug and Alcohol Treatment Order. The court had to consider the subjective circumstances of the case, including McKenna's history of drug addiction, his efforts towards rehabilitation, and the impact of his offences on the community. Additionally, the court needed to address the cancellation of previous Good Behaviour Orders and the imposition of new sentences for the offences in question.

Justice Harper considered the totality of the evidence presented, including the submissions from both the prosecution and the defence, as well as expert evidence on drug addiction and rehabilitation. The court found that McKenna's history of drug abuse and his repeated offending warranted a custodial sentence, but also recognised the importance of rehabilitation and treatment. The court imposed sentences of imprisonment for each of the offences, with the sentences to run concurrently. Additionally, the court imposed a Drug and Alcohol Treatment Order for a period of two years, with the custodial part of the order suspended until the end of the total sentence. The court also directed McKenna to comply with various conditions, including the acceptance of supervision and compliance with urinalysis and treatment requirements.

The court's final orders included the cancellation of previous Good Behaviour Orders, the imposition of new sentences for each offence, and the imposition of a Drug and Alcohol Treatment Order with specific conditions for treatment and supervision. The court also directed McKenna to sign an undertaking to comply with the offender's Good Behaviour Obligations and to attend court on a specified date. The orders reflect the court's balanced approach to sentencing, considering both the need for punishment and the importance of rehabilitation for drug-related offenders.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v McKenna [2022] ACTSC 346

Most Recent Citation

R v Walden [2022] ACTSC 347

Cases citing this decision · 3 of 3 shown

R v McConnell-Imbriotis
[2024] ACTSC 319

…5 Cotter v Corvisy [2008] ACTSC 64 DPP v McConnell-Imbriotis [2022] ACTSC 372 R v Baker (No 3) [2019] ACTSC 365 R v Law [2021] ACTSC 351 R v McKenna [2022] ACTSC 346 R v Pearce (No 2) [2022] ACTSC 71 R v Rosewarne [2021] ACTSC 217…
R v Subasic
[2022] ACTSC 380 Para 19

…The harm that drugs bring is well known and to spread drugs is to cause harm to both the user/purchaser as well as to the community. See R v McKenna [2022] ACTSC 346 at [1]–[4]. The Court is, however, satisfied on the evidence that Mr Subasic is a street level dealer and dealing simply to feed his own dependency.…
R v Walden
[2022] ACTSC 347

…111; 46 NSWLR 346 R v JM [2014] ACTSC 380 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lovelock [2014] ACTSC 229 R v McHughes [2021] ACTSC 92 R v McKenna [2022] ACTSC 346 R v Ngata [2015] ACTSC 356 R v Nguyen [2021] ACTSC 146 R v Novaklovic (a.k.a. Noland) (No 1) [2021] ACTSC 62 R v Pham [2015] HCA 39; 256 CLR 550 R v…

View all 3 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Green
[2021] ACTSC 356 Para 1

…ial 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].…
R v Hancock
[2021] ACTSC 52 Para 1

…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].…
R v Mathews
[2020] ACTSC 364 Para 1

…al 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].…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…e 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].…
Director of Public Prosecutions v Peddell
[2018] VCC 1546 Para 1

…s, 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 offenc…
DPP v Swingler
[2017] VSCA 305 Para 1

…en 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;…
Singh v The Queen
[2017] ACTCA 17 Para 1

…wealth 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 (a…
R v NF (No 1)
[2016] ACTSC 216 Para 1

…inal 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].…
R v Curtis (No 2)
[2016] ACTSC 34 Para 1

…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:…
R v NE
[2015] ACTSC 352 Para 1

…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].…
The Queen v BB
[2015] ACTSC 304 Para 1

…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.…
R v Thorn
[2015] ACTSC 218 Para 1

…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…
O'Brien v The Queen
[2015] ACTCA 47 Para 1

…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].…
R v Cahill
[2015] NSWCCA 53 Para 1

…iven 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 i…
Bui v The Queen
[2015] ACTCA 5 Para 1

…horities. 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.…
DPP (Cth) v Maxwell
[2013] VSCA 50 Para 1

…ce, 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…
R v Nguyen; R v Pham
[2010] NSWCCA 238 Para 1

…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…
R v Verdins
[2007] VSCA 102 Para 1

…ct 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.…
Pearce v The Queen
[1998] HCA 57 Para 1

…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].…
Ibbs v the Queen
[1987] HCA 46 Para 1

…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 pos…

Legislation cited in this decision · 5

Crimes (Sentencing) Act 2005 (ACT)
10, 12A, 33, 46J, 46K, 62, 63, 7, 71, 80... 13 mentions (from Para 1)
Crimes Act 1914 (Cth)
16A, 16E, 17A, 19, 302 6 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
110 2 mentions (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)
Criminal Code Regulation 2005 (ACT)
1 mention