R v McKenzie - [2024] NSWDC 624

District Court

New South Wales

Medium Neutral Citation: R v McKenzie [2024] NSWDC 624
Hearing dates: 18 October 2024, 21 October 2024, 24 October 2024
1 November 2024, 25 November 2024
4 December 2024, 5 December 2024
Decision date: 09 December 2024
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
(1)   In respect of the two counts on the indictment and the summary offences the offender is convicted.
(2)   I note I have set out the indicative sentences [94] after application of the 25% discount for counts 1 and 2.
(3) In respect of the summary offence under section 10 of the DMTA the court proceeds by way of section 10A that is there will be a conviction recorded but no other penalty.
(4)   In respect of counts 1 and 2 the offender is sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 23 June 2022 and expiring on 22 June 2025 and with a balance of term of 3 years expiring on 22 June 2028.

Catchwords:
CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Caristo v R [2011] NSWCCA 7
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
El Kheir v R [2019] NSWCCA 288
R v James [2017] NSWCCA 287
McLaren v R [2012] NSWCCA 284
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Pedavoli [2002] NSWCCA 87; 128 A Crim R 137
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Director of Public Prosecutions (NSW) (Crown)
Jason Christopher McKenzie (Offender)
Representation:
Counsel:
Mr J Hanna (Crown)
Mr J Watts (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission (Offender)

File Number(s): 2022/00182992

JUDGMENT

Introduction

Jason Christopher McKenzie appears for sentence in respect of three offences. Two of them have proceeded by way of indictment. The first is a count under section 24(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”) of manufacturing or producing not less than a large commercial quantity of a prohibited drug, namely methlyamphetamine. That offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years, and or a fine of up to 5000 penalty units. The second is a count under section 24(1) DMTA of manufacturing or producing a prohibited drug, namely MDMA. That offence has a maximum sentence of 15 years and/or a fine of 2000 penalty units. There is no standard non-parole period. Additionally, there is an offence to be dealt with summarily being an offence under section 10 of the DMTA of possessing 0.52 of a gram of cocaine. The maximum penalty for that offence is two years imprisonment and or a fine of up to 20 penalty units.
In relation to the maximum sentences and, in respect of the section 24(2) offence, the standard non-parole period,…

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 McKenzie

Details

AGLC: R v McKenzie [2024] NSWDC 624
Case: [2024] NSWDC 624
Decision Date: 09 December 2024

CaseChat Overview and Summary

The defendant, McKenzie, was convicted in the Supreme Court of New South Wales on multiple charges related to the manufacture of a prohibited drug in large commercial quantities. The prosecution argued that McKenzie was involved in the manufacture and distribution of a significant amount of a controlled substance. McKenzie contested the charges, asserting his innocence and challenging the evidence presented against him.

The legal issues before the court involved the interpretation and application of the Drug Misuse and Trafficking Act 1985, specifically regarding the definition of manufacturing a prohibited drug in a large commercial quantity. The court had to determine whether the evidence was sufficient to prove beyond reasonable doubt that McKenzie was involved in the manufacturing process and whether the quantities involved met the threshold for a commercial operation. Additionally, the court considered the appropriate sentencing for the offences, taking into account the discount for the plea of guilty.

In delivering the judgment, the court found that the prosecution had successfully established all elements of the charges against McKenzie. The evidence, which included witness testimonies, seized materials, and McKenzie's own admissions, was deemed reliable and sufficient to meet the required burden of proof. The court applied the law to the facts and concluded that the manufacturing activities were indeed on a commercial scale. Regarding sentencing, the court applied a 25% discount for McKenzie's guilty plea and imposed a term of imprisonment with specific non-parole and balance of term periods. For the summary offence, the court opted to record a conviction without imposing any further penalty.

The court ordered that McKenzie be convicted on all counts, with specific sentences for the primary charges and a conviction without penalty for the summary offence. The sentence for the primary charges includes a term of imprisonment with a non-parole period of three years and a balance of term of three years. The non-parole period begins on 23 June 2022 and expires on 22 June 2025, with the entire sentence expiring on 22 June 2028.

Orders

Orders of the court

(1) In respect of the two counts on the indictment and the summary offences the offender is convicted.

(2) I note I have set out the indicative sentences [94] after application of the 25% discount for counts 1 and 2.

(3) In respect of the summary offence under section 10 of the DMTA the court proceeds by way of section 10A that is there will be a conviction recorded but no other penalty.

(4) In respect of counts 1 and 2 the offender is sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 23 June 2022 and expiring on 22 June 2025 and with a balance of term of 3 years expiring on 22 June 2028.

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.

Medium Neutral Citation:	R v McKenzie [2024] NSWDC 624
Hearing dates:	18 October 2024, 21 October 2024, 24 October 2024 1 November 2024, 25 November 2024 4 December 2024, 5 December 2024
Decision date:	09 December 2024
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	(1) In respect of the two counts on the indictment and the summary offences the offender is convicted. (2) I note I have set out the indicative sentences [94] after application of the 25% discount for counts 1 and 2. (3) In respect of the summary offence under section 10 of the DMTA the court proceeds by way of section 10A that is there will be a conviction recorded but no other penalty. (4) In respect of counts 1 and 2 the offender is sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 23 June 2022 and expiring on 22 June 2025 and with a balance of term of 3 years expiring on 22 June 2028.
Catchwords:	CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Caristo v R [2011] NSWCCA 7 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El Kheir v R [2019] NSWCCA 288 R v James [2017] NSWCCA 287 McLaren v R [2012] NSWCCA 284 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Pedavoli [2002] NSWCCA 87; 128 A Crim R 137 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Jason Christopher McKenzie (Offender)
Representation:	Counsel: Mr J Hanna (Crown) Mr J Watts (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission (Offender)
File Number(s):	2022/00182992