R v McKenzie

[2022] NSWDC 552

District Court

New South Wales

Medium Neutral Citation:

R v McKenzie [2022] NSWDC 552

Hearing dates:

23 June 2022

Date of orders:

24 June 2022

Decision date:

24 June 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose an aggregate sentence of four years and ten months imprisonment, with a non‑parole period of three years imprisonment.  The sentence commences on 23 June 2021 and expires on 22 April 2026.  The non‑parole expires on 22 June 2024.

Refer the offender to the Drug Court under s 18B of the Drug Court Act to determine if he is suitable for a compulsory drug treatment order.

The $2000 in cash is forfeited.

Catchwords:

CRIME – Drug offences – Ongoing supply

Legislation Cited:

Drug Court Act 1998 (NSW), s 18B

Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases Cited:

R v Henry (1999) 45 NSWLR 346

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (Crown)

Wayne Douglas McKenzie (Offender)

Representation:

Solicitors:
Ms S Hatch (Crown)
Mr C Brown (Offender)

File Number(s):

2021/00180897

SENTENCE

Introduction

1. The offender, Mr McKenzie, stands to be sentenced having pleaded guilty to the following three offences: that between 22 February 2021 and 23 March 2021 in Mount Druitt he did, on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug, other than cannabis, namely heroin, for financial material or reward.  This is charge sequence 2.  The second offence is that between 24 March 2021 and 22 April 2021 in Mount Druitt he did, on three or more occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis, namely heroin, for financial or material reward.  That offence is contained in charge sequence 25.  The third offence is that between 31 May 2021 and 23 June 2021 he did, on three or more separate occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis, namely heroin, for financial or material reward.  That offence is contained in charge sequence 56.

2. Each of those offences is an offence of ongoing supply prohibited drug under s 25A(1) of the Drug Misuse and Trafficking Act and each have a maximum penalty of 20 years imprisonment and/or a fine equivalent to 3,500 penalty units.  There is no applicable standard non‑parole period. 

3. When sentencing the offender on the offence contained in sequence 25 he acknowledges his guilt of an offence on a form 1 being a further ongoing supply of heroin offence that occurred between 24 April 2021 and 23 May 2021 and asks that I take that offence into account when sentencing him on the offence in sequence 25.  That ongoing supply offence involved the supply of heroin on 14 separate occasions, involving no less than 16.9 grams of the drug in return for a financial gain of not less than $9,200.

4. When sentencing the offender on the offence contained in sequence 56 the offender acknowledges his guilt in relation to two offences that are on a form 1, being an offence of supplying 23 grams of heroin that occurred on 23 June 2021 and an offence of dealing with property where there are reasonable grounds to suspect that it is the proceeds of crime where the property is $2,000.  The 23 grams of heroin, the subject of the supply prohibited drug offence on this form 1, relates to a quantity of that drug found at his premises upon his arrest.  The $2,000, the subject of the proceeds of crime offence, was also found at the same time.

The facts

5. Turning then to the facts which are agreed and the following is taken from the agreed facts.  A police strike force was established to target the supply of illicit substances in the Mount Druitt area with a focus primarily being on heroin.  The offender was identified as a heroin supplier in and around Mount Druitt.  There was evidence that he would direct and coordinate activities, using associates and close family members to conduct a business venture in the supply of heroin for financial gain.  One base was said to be his home in Northmead, another was an address in Shalvey.  He was, according to the facts, observed to deal with an insular customer base known personally to him or his associates.

6. From February 2021 through to June 2021 police monitored a particular mobile telephone service ending in 622, set out in the facts, which was subscribed on 18 December 2020, a Brook Lucas.  From February 2021 through to July 2021 the police monitored another mobile telephone service ending in 307, which is set out in the facts, which was subscribed on 19 June 2019 to a Skye Ronan, and from February 2021 through to June 2021 police monitored another mobile telephone service, ending in 105, which was subscribed to a Kurnal Patel.  The facts indicate that the offender was using each of those mobile telephone services at the relevant time to conduct his drug supply business.

7. On 19 February 2021 the police intercepted the mobile phone service ending in 622.  Between 22 February 2021 and 23 March 2021, through monitoring that mobile phone service, the facts state the offender supplied heroin to his customer base in response to requests captured over telephone intercepts, depending on the request made, on each occasion receiving a financial or material reward.  The offender was observed during this 30‑day period to be supplying or agreeing to supply on eight separate occasions no less than 10.2 grams of heroin in return for a financial gain of not less than $4,500.  They are the essential facts for sequence 2, and I should note that there is attached to the agreed facts a schedule of supplies between 22 February 2021 and 23 June 2021, which I have had regard to.

8. In terms of the facts supporting sequence 25, between 24 March 2021 and 22 April 2021 police monitored and recorded the offender in the supply of heroin.  He supplied the heroin to his customer base in response to requests which were captured over the telephone intercept that the police were conducting.  He was observed during that 30‑day period to be supplying or agreeing to supply on 16 separate occasions no less than 16.1 grams of heroin in return for a financial gain of not less than $7,650.  In terms of the sequence 45 offence, which is the offence on the form 1 which relates to the sentencing on sequence 25, there was a further, as I say, ongoing supply offence between 24 April 2021 and 23 May 2021.  He was observed during that 30‑day period to be supply or agreeing to supply on 14 separate occasions no less than 16.9 grams of heroin in return for a financial gain of not less than $9,200.

9. In relation to the offence contained in sequence 56, between 24 May 2021 and 22 June 2021, he was recorded as supplying heroin to his customer base essentially upon request over the telephone.  He was observed during that 30‑day period to be supplying or agreeing to supply on six separate occasions no less than 7.7 grams of heroin in return for a financial gain of not less then $4,300.  At around 8.30am on 23 June 2021 he left his address at Northmead in his motor vehicle.  He was stopped by police at Minchinbury and removed from his vehicle.  A search warrant was conducted that day on his premises in Balmoral Road.  A search of the premises located 23 grams of heroin and an amount of $2,000, and that substance and that cash relate to the matters on the form 1 that is to be taken into account when sentencing him on the offence in sequence 56.

10. He was arrested, cautioned and questioned in relation to drug supply offences.  He made certain admissions which are set out in the agreed facts, including an admission that he was involved in the supplies, that he was a frequent user of heroin, and also on the methadone program, that he has used the supply of heroin to fund his own use.  He told the police he had only been supplying for a few months, although perhaps his evidence today went further than that, but he is only to be sentence on the basis of what is in the agreed facts.

Objective seriousness

11. I turn then to my assessment of the objective seriousness of the offences.  In assessing the objective seriousness of offences of ongoing supply, relevant factors include the extent of repetition, system and organisation involved in the offences.  The objective criminality of this type of offence is to be determined by reference to those factors and not merely to the number and quantities of individual instances of supply.  However, the number and quantities of individual supplies remains relevant to an assessment of objective seriousness.

12. The first offence in time involves the supply of heroin on eight occasions and the amount involved was not less than 10.2 grams, approximately twice the indictable quantity.  The second in time offence involves supplies on 16 occasions of, in total, not less than 16.1 grams, approximately three times the indictable quantity.  The third in time offence involves supplies on six occasions of, in total, 7.7 grams, a little over the indictable quantity.  The amounts involved in each offence were relatively modest but the amount supplied is only one factor to have regard to.  It must be remembered that the offence creating provision was introduced into the Drug Misuse and Trafficking Act to target people who sell small amounts of a prohibited drug on a regular basis.

13. There was some level of planning involved, noting that the offender used three mobile phones, none of which were registered in his name, and he had a regular clientele base.  He clearly was conducting a business of selling heroin over a period of some four months, although it cannot be said that the supplies had any real degree of sophistication attaching to them.  All of the material before me satisfies me that the offender was engaged in the offending so that the offender could fund his own heroin habit and he can be described as a “user‑dealer”, which means his criminality is not as great as that of someone simply engaged in the drug trade to make a profit.

14. I assess each of the principal offences to be a little below the level of a notional midrange offence.  Given the number of individual supplies in the second offence, I consider it to be a little more serious than the other two offences. 

15. I do not consider that there are any objective aggravating factors under s 21A of the Crime (Sentencing Procedure) Act present here. 

16. The form 1 offences, in particular, the offence to be taken into account when sentencing the offender on the offence in charge sequence 25, are of a level of seriousness such that they do have something of an impact upon the sentence to be imposed on the principal counts to which they relate.

The offender’s subjective case

17. Turning then to the offender's subjective case.  He is currently 53 years of age, and was 52 as at the date of the offences.  The offender has a criminal history and has spent some time in custody in the past, although not for drug supply.  He has in the past received sentences of fulltime custody for offences of break enter and steal, larceny, affray, and possess unregistered firearm.  His criminal record is one which disentitles him to leniency in this sentence but it is not an aggravating factor.

18. On 11 September 2019 the offender received from the Local Court a community correction order for an offence of possess prohibited drug for a period of 18 months.  That order expired on 10 March 2021.  The current offences were committed while he was subject to the order which involved conditional liberty.  The fact his offences were committed while on conditional liberty is an aggravating factor on sentence under s 21A of the Crime (Sentencing Procedure) Act. 

19. I have before me a psychologist’s report of Mr Graeme Randall dated 22 June 2022, and a Sentencing Assessment Report provided by Community Corrections dated 23 June 2022.  The offender gave evidence and confirmed the truthfulness of those reports.

20. Turning then to the offender's family background.  The offender is the second youngest of four children to his natural parents.  He reported to the psychologist that until the age of ten he had a relatively good relationship with all members of his family, particularly his father.  The offender reported the relationship with his family was now negligible, noting that he had not spoken to anyone in his family for approximately ten years.  He reported a particularly close relationship with his father.  He reported that his father died approximately 15 years ago and described it as a significant loss, his father being one of the few positive supports in his life.  His relationship with his mother was said to be less supportive, describing to the psychologist that it was average, the two having limited interaction.

21. When he was approximately ten years old the offender reported that his parents separated and a court order required him to live with his mother.  The offender reported to the psychologist that he harboured a resentment for his mother, referring to her as the "evil one" because she did not allow him or his siblings to visit his father.  The offender described his family situation as deteriorating after his parents' separation.  He described going without food on some occasions because his mother had little money.  He described engaging in criminal behaviour when he was approximately 14 years of age to provide essentials such as food and good clothing for himself.

22. The offender denied any history of violence within the family home throughout his childhood and adolescence.  He reported no history of mental ill health or drug abuse in the family, though he was exposed to the drug culture from an early age, noting that drugs and violence were prevalent within his neighbourhood.  When he was approximately 15 the offender reported that he reconnected with his father, which he said led to him being "kicked out" of home by his mother.  This led to the offender not having stable accommodation, describing that he couch surfed with friends and associates.  He said he never returned to a stable fixed address.

23. The offender reported having two long‑term intimate relationships in his life, with a daughter now 27 years old, born to his first relationship, and a son now 23 years of age in his second relationship.  He reported this relationship as ending 14 years ago.  He remains in contact with his son but has reported limited contact with his daughter.  The Sentencing Assessment Report notes that the offender's former wife and son live close by and expressed to the author of the report their willingness to provide the offender with ongoing support to reintegrate him back into the community.

24. In terms of his education and employment history, he reported attending only one primary school and high school.  He obtained his school certificate in year 10 before leaving school at the same time he left home.  The offender reported having difficulty concentrating in class and generally a poor academic performance.  He was placed in a behavioural class from year 5 onwards.  He reported some level of truanting in the later years of high school.  He denied any suspensions or expulsions from school.  The offender described poor literacy and numeracy skills as a result of his inattention during school.  After leaving school the offender reported that he obtained employment with his father as a labourer in his plastering business.  He reported to the psychologist that he ceased working with his father after approximately two years believing that he could make more money through criminal behaviour.  The offender described his work history as sporadic and only managed to maintain secure employment for periods of a year or two at a time.

25. At the time of the offences the offender was unemployed and receiving government support.  He reported to the psychologist as having rarely consumed alcohol.  He reported first using cannabis when he was 14 years of age.  He described daily use and would purchase his own supply from the proceeds of crime after he left home until he was 16 years old.  The offender reportedly ceased cannabis use shortly thereafter when introduced to heroin at age 16.  The offender has an extensive and lifelong addiction to heroin and described using 2 to 3 grams per day.  The author of the Sentencing Assessment Report described his use as habitual.  The offender gave evidence that he was essentially introduced to heroin by people a little older than himself when he was 16.  He has had limited success with abstaining from heroin use, with some periods of sobriety while in prison when working or on the methadone program.

26. The offender reported a limited engagement with drug rehabilitation services in the past.  He has made only one attempt at a residential drug rehabilitation program when he was 19 years of age.  This attempt was unsuccessful and he reported to the psychologist that he left after three days. Since he was 22 he reported having been on the methadone program a total of four times.  Clearly the offender's heroin use is an affliction which has caused him significant difficulties in his life, which he acknowledged in his evidence.  His heroin abuse has led to three or four overdoses which resulted in short hospital admissions according to the material before me.  At the time of the Community Corrections assessment he was appearing compliant with his pharmacotherapy treatment, according to that report.

27. Turning to his psychological history.  The offender reported to the psychologist that he believed he had been treated for a major depressive disorder in the past.  He described seeing a psychologist for treatment approximately once a month and was prescribed antidepressants.  He described taking these for about a month but believed he could not continue as he found the side effects difficult to manage.  I note, however, that there was no evidence of this formal diagnosis.  The psychologist opined that despite the offender's reports of a prior diagnosis of major depressive disorder his account of his symptoms at the time of his diagnosis was not sufficient to explain that diagnosis.

28. During this assessment the psychologist reported that the offender did not present as depressed, nor did he recount symptoms that might suggest such a diagnosis.  He denied any suicidal attempts or thoughts at the time of the psychological assessment.  The psychologist noted that during the offender's assessment his mood appeared stable and there were no indications of disturbances of thought, senses, or cognition.  The psychologist opined that the offender met the criteria for a diagnosis of an opioid use disorder, severe, on maintenance therapy and in a controlled environment. Further he suggested that the offender presented with symptoms that raised the possibility of an underlying undiagnosed attention deficit hyperactivity disorder.  This, however, was not confirmed and was believed to require further investigation.

29. The offender was last supervised by Mount Druitt Community Corrections on an intensive correction order from 11 September 2019 to 10 March 2021.  The records reflect his response to supervision was satisfactory.  I note in his current period of custody he has worked in the Corrective Services furniture unit and has received no adverse reports.  He has reported a willingness to engage in supervision and attend suitable intervention services to address his drug use.  However, the author of the Sentencing Assessment Report noted he has "historically displayed a level of resistance to engaging with counselling and other support services".

30. I have had regard to the fact that the offender is being sentenced during the COVID‑19 pandemic.  It is well known the conditions in custody are more arduous for inmates during the pandemic, as inmates are spending longer periods of time in their cells, receiving fewer, if any, in person visits, and there has been a reduction in the rehabilitative programs available to them.  I note the offender reported to the psychologist as having experienced 143 days of lockdown during his time in custody, commenting that the lockdowns have been the most difficult part of his current incarceration.  The offender, in his evidence today, confirmed the harsher conditions he has experienced due to the pandemic while in custody.

17. The offender reported some insight into the cyclical nature of his drug abuse, stating to the author of the Sentencing Assessment Report that he "acknowledged knowing his actions were illegal but that he was motivated by his own addiction, stating his offending was never for financial gain but to fund his own dependency".  I am guarded, however, as to the offender's comments to the psychologist that he has suddenly gained a keener insight into his offending behaviour.  I note that he reported to the psychologist that he has come to a realisation of the harm caused by his drug use, particularly on his ex‑partner and the relationship with his son.  The author of the Sentencing Assessment Report, however, commented that the offender's insight appeared limited to himself and his immediate family, and that he "attempted to justify and minimise his actions by stating he only sold to junkies and would not sell to children or single mothers".

18. The psychologist similarly suggested a lack of insight between the offender's drug use and his offending behaviour.  The psychologist opined that the offender's belief, "that he will be able to maintain abstinence without support despite his previously acknowledged cycle of returning to heroin use as a coping mechanism, suggests he has a limited level of insight regarding his addiction".  Similarly, the author of the Sentencing Assessment Report opined that the offender "despite expressing a desire to address his offending behaviours and remain abstinent, he has historically made similar verbalisations to no avail".  I do note that in his evidence today the offender expressed some clearer insight into the harm that supplying drugs like heroin causes in our community.

19. In terms of his remorse, the offender reportedly expressed remorse for his drug use and offending behaviour to the psychologist, although the psychologist does not record how that remorse was actually expressed.  I note that the offender reported to the psychologist that he now felt he wanted to "build some stability in his life and find stable accommodation", and that he is "sick of the prison life".  He gave evidence today to similar effect.  He was assessed at a medium to high risk of reoffending by the author of the Sentencing Assessment Report.

20. Turning then to the relevance of the offender's drug addiction to the sentence.  The fact that an offence is committed by someone who has an addiction to prohibited drugs is generally not a mitigating factor.  This is because the decision to use alcohol or prohibited drugs is seen as an example of a person engaging in freedom of choice.  Addiction, however, in some instances can result in a lesser sentence being imposed.  That generally involves a consideration of the background to the offender's addiction.  Addiction can reduce a sentence, for example, where the addiction originated because the offender grew up in circumstances of social disadvantage or deprivation surrounded by the misuse of alcohol or prohibited drugs, or where the offender's addiction commenced at a young age and there have been few opportunities to engage in drug or alcohol rehabilitation.  In these sorts of circumstances there can be some reduction of the sentence as the consequence of having a causal connection to an addiction.  See the discussion of this issue in the judgments in R v Henry (1999) 45 NSWLR 346.

21. I have had regard to the above principles here and to the evidence before me as to the fact the offender commenced to use drugs at an early age and the aspects of his childhood which involved his exposure to adults who use prohibited drugs around him.  However, he clearly has had a number of opportunities to do something about his drug addiction in the past and has failed to take advantage of those opportunities.  He is now a man in his fifties, and I do not consider that the fact he committed these offences, in effect, to fund his addiction significantly mitigates the sentence to be imposed.

22. The offender entered a plea of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian discount of his plea in accordance with the Crime (Sentencing Procedure) Act.  The offender has some remorse for the offending, as reflected in his early plea of guilty and his statements to the report writers. However, he appears to have limited insight into the impact of his offending on the community.  His remorse is primarily self‑focused, in my opinion, and is not what could be described as fulsome. 

23. He has no better than guarded prospects of rehabilitation in my opinion.  He is in his 50s now but has a criminal record of some substance, and committed the offences while on conditional liberty.  He has in the past attempted drug rehabilitation and has failed.  He has somewhat limited support in the community.  He was assessed by Community Corrections in the Sentencing Assessment Report to have a medium to high risk of reoffending.  For those reasons his prospects of rehabilitation are no better than guarded.

24. Given his criminal history, the fact he committed these offences while on conditional liberty and his struggle with prohibited drugs, I am unable to make a finding that he is unlikely to reoffend.  The offender clearly will need considerable support in the community when he is released to deal with his drug addiction.  As I noted earlier, he is being sentenced during the COVID‑19 pandemic, when it is well known the conditions of custody are much harsher than during pre‑COVID times.  He appears also to have some mental health issues which may make his time in custody more difficult.  The combination of those factors leads me to make a finding of special circumstances when I fix the non‑parole period.

Imposition of sentence

39. The offender has been in custody since the date of his arrest on 23 June 2021, so the sentence will commence on that date to take account of all pre‑sentence custody.  I will use the aggregate sentencing provisions when imposing sentence.  If I had not done so my approach to accumulation and concurrency would have been as follows:  The three offences on which he is to be sentenced are of the same type but they traverse different time periods.  There must be a reasonable degree of accumulation of the sentences imposed on each offence in these circumstances.  Clearly the sentence on one such offence cannot comprehend and reflect the criminality involved in the other two offences.

40. I have had regard to the objectives of sentencing referred to in s 3A of the Crime (Sentencing Procedure) Act.  General deterrence, that is the need to send a message to the community that significant sentences will be imposed on those who supply prohibited drugs for money, must always feature when imposing sentence for such offences.  Prohibited drugs like heroin are destroying lives, families and the very fabric of our community.  Given the offender's criminal record, personal deterrence also must be given some weight when arriving at the appropriate sentence to impose here.

41. The maximum penalty has been taken into account as a legislative guidepost.  The offender, Mr McKenzie, is convicted of the three ongoing supply offences to which he has pleaded guilty.  I will, firstly, record the indicative sentences.  In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.  The sentences Mr McKenzie will hear me first announce are what are called indicative sentences.  He will then hear me announce an aggregate sentence which is the sentence and non‑parole that he will serve.  It is not arrived at by simply adding up all of the indicative sentences.  When announcing the aggregate sentence I will tell you the date it starts from, the date it ends, and the date when you are first eligible for parole.

42. The indicative sentence on charge sequence 2 is three years imprisonment.  The indicative sentence on charge sequence 25, having regard to the offence on the form 1, is three years and six months imprisonment.  The indicative sentence on charge sequence 56, having regard to the offences on the form 1, is three years and two months imprisonment.  I impose an aggregate sentence of four years and ten months imprisonment, with a non‑parole period of three years imprisonment.  It commences on 23 June 2021 and expires on 22 April 2026.  The non‑parole expires on 22 June 2024.  The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period which is 22 June 2024.

43. The earliest date Mr McKenzie is eligible to be released to parole is the date of the expiry of the non‑parole period which is 22 June 2024.  Whether Mr McKenzie is in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of his behaviour in prison in determining whether he is released then or on another date. 

44. I refer the offender to the Drug Court under s 18B of the Drug Court Act for that Court to determine whether he should be the subject of a compulsory drug treatment order.  I make the consent forfeiture order in relation to the $2,000 in cash that was seized.

Orders

1. Impose an aggregate sentence of four years and ten months imprisonment, with a non‑parole period of three years imprisonment.  The sentence commences on 23 June 2021 and expires on 22 April 2026.  The non‑parole expires on 22 June 2024. 

2. Refer the offender to the Drug Court under s 18B of the Drug Court Act to determine if the offender is suitable for a compulsory drug treatment order.

3. The $2000 in cash is forfeited.

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Decision last updated: 15 November 2022