R v McKenzie

[2011] NSWDC 168

District Court

New South Wales

Medium Neutral Citation:	R v McKENZIE [2011] NSWDC 168
Hearing dates:	5 May 2011, 2 September 2011
Decision date:	02 September 2011
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment. Released on a recognizance release order
Catchwords:	CRIMINAL LAW - Sentence - Aiding and abetting - Border controlled drug - Amphetamine - Marketable quantity - Post traumatic stress disorder following sinking of passenger vessel.
Legislation Cited:	Crimes (Sentencing Procedure) Act Crimes Act (Cth)
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R
Category:	Sentence
Parties:	The Crown Karen McKenzie
Representation:	Mr R Driels - Offender Ms N Paul - Offender Director of Public Prosecutions (Cth) Andrews Lawyers - Offender
File Number(s):	2010/35982

SENTENCE

1. HIS HONOUR: Karen McKenzie appears for sentence after having pleaded guilty at an early stage to aiding and abetting the importing of a border controlled drug namely amphetamine, the quantity imported being a marketable quantity. What Ms McKenzie did, precisely, has been the subject of some dispute in the evidence before me. It is important therefore that I make clear my findings of fact.

1. The matter came to the attention of the authorities when they detected a series of packages, sent from the United States of America' which had secreted within them methamphetamine. These were sent by a Ms Farrow. Some of those packages were sent to the offender's address. One particular consignment is the subject of the present offence. It was sent to the consignee named as Janet Rigby, Gordon Rigby Smith & Co., at the offender's address in Redfern. It purported to contain a cordless tranquillity fountain kit for relaxation and whilst it may well have contained something of that nature it also contained a significant quantity of drugs; 63.3 grams of pure crystal methamphetamine.

1. Gordon Rigby Smith is the offender's uncle, he is relatively old and has suffered from Alzheimer's disease for a number of years. His affairs have been managed by the Public Guardian since 23 December 2009. He is also cared for by the offender herself. It is clearly a matter which reflects badly upon her that she used her demented uncle's name as a means of escaping detection as she committed the offence for which she must now be sentenced.

1. The particular area of dispute concerns the level of the offender's involvement. The Crown submissions in this matter are predicated on the assumption that I would find that Ms McKenzie was the purchaser of those drugs, but it is Ms McKenzie's evidence is that all she did was allow her address to be used by another person who was the actual purchaser, in return for receiving free drugs. She admits that as well as doing that she used her own telephone to check up on where the particular consignment was, using the tracking number that had been provided. She concedes also that her fingerprint was found on a deposit slip which accompanied a deposit of $8,000 cash into Ms Farrow's bank account and she concedes that when she was first arrested by the Australian Federal Police she told them, what I would describe as a pack of lies. But she still maintains that she was not the purchaser of the drugs, merely someone who aided the purchaser by receiving packages at her address. I will sentence her on the basis that she describes.

1. It is important to note that she was charged as an aider and abetter, she was not charged as a principal and were it the case that she was in fact a person who purchased and thus imported the drugs, I would have expected her to be charged as a principal. In any case the only material the Crown can rely on is the statement of facts. Read carefully it is not inconsistent with the sworn evidence given by the offender. I will therefore sentence her on the basis that her criminality is that she allowed someone else to have packages that she knew contained drugs sent to her premises in return for receiving some free drugs herself.

1. I mentioned before that this was not the first package. Although of course I am only to sentence Ms McKenzie for the actual offence to which she has pleaded guilty, she does not get the benefit of a finding that this was an isolated instance.

1. Ms McKenzie is forty-eight years of age, she has no prior convictions, although given her lengthy history of drug use it cannot be said that she has never broken the law before. She has been a user of illegal drugs for some time and each time she purchased them, possessed them and used them, she was committing a criminal offence, albeit of course an offence not nearly as serious as the offence for which she must now be sentenced.

1. She was brought up in a stable and loving family, she was married, that marriage ending in divorce, but remains on good terms with her ex-husband. Indeed he provided a reference supporting his ex-wife in the present proceedings. She has her own graphic design business. Like many businesses of recent times it has had some financial set-backs but Ms McKenzie hopes to be able to revitalise the business if the order I make today allows her to do so.

1. She has done much in her life that she is entitled to be proud of. On the first occasion this matter was before me there were many people in the Court room supporting her, and a lot of those people have returned today. Tendered on the last occasion were also many, many, references from family and friends describing the good work that Ms McKenzie does to others who need support and comfort. She helps strangers as well, assisting various charities in financial terms, despite her financial position not being a comfortable one.

1. It is surprising, indeed, were it not for a factor I will now mention, for a person of Ms McKenzie's admirable background and character to face a sentence for such a serious offence as this, an offence which ordinarily would result in Ms McKenzie receiving a sentence of full time custody.

1. In 1989 Ms McKenzie was in London, she was on the Marchioness, a boat which was sunk in a collision with another vessel on the Thames; fifty-one people died in that collision. Ms McKenzie was trapped under water for a significant period of time but was able to swim to the surface and eventually, after some significant time in the water, she was rescued. Not surprisingly that experience has had a profound impact upon her. Diagnoses of post-traumatic stress disorder are bandied around these courts with gay abandon, but it is not at all difficult to accept that many of the problems that Ms McKenzie has faced since 1989 can be traced directly to the terrifying experience which I have just described.

1. Courts are often called upon to sentence offenders addicted to drugs. In determining the effect that such an addiction has upon the sentence to be imposed, Judges often look at the concept of personal choice. Indeed the well-known decision of R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R examined that issue at some length. It has to be recognised that Ms McKenzie was less able than others to respond appropriately to stressors in her life which followed the sinking of the Marchioness because of her experience. That is not, of course, to say that all survivors of the Marchioness went down the path of drug use, but it is to recognise that the choices that Ms McKenzie faced were made more difficult for her by her experience. She began to self-medicate in the years which followed and that led to a significant drug addiction which in turn, led directly to the commission of this offence.

1. When the matter was first before me there were promising signs. Ms McKenzie was receiving treatment and it looked as though she was able to put her drug addiction behind her. I therefore adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act. In doing so I made it quite clear to Ms McKenzie the impact that further drug use would have upon my decision as to what sentence I would impose upon her. I told her this, "I can guarantee you that any use of drugs is going to make it much more likely that you end up in gaol." Despite that warning Ms McKenzie has used drugs. One of the conditions of the s 11 remand was that she undergo regular urinalysis. The urinalysis conducted in late June revealed the presence of amphetamine type substances and benzodiazepines. If Ms McKenzie is prepared to use drugs knowing that she will be coming back before a Judge to be sentenced for a drug related offence, one has to wonder whether there needs to be a further and important aspect of personal deterrence in any sentence I impose upon her. That she would use drugs knowing that her use would be revealed to the Judge who is about to sentence her says a lot about the depth of her addiction. It calls into question her prospects of rehabilitation, at least insofar as that concerns drug use. It also makes it more likely that the offender will commit other more serious offences beyond simple drug use; offences of the kind that I have to sentence her for. It is disappointing to say the least that she appears in Court unable to say that she took advantage of the period of leniency that was offered to her.

1. Notwithstanding that use of drugs, reports tendered today by people who are aware of the relapse still speak highly of her, and her abilities to rehabilitate, that is to put her drug use behind her. In particular the pre-sentence report, the updated one tendered today, remains positive. Indeed, although it is not terribly relevant to the ultimate sentence that I am going to impose, whilst in the first pre-sentence report she was not suitable for a Community Service Order because of her vulnerability to relapse, the author of the updated pre-sentence report has been so impressed by Ms McKenzie's efforts, despite the relapse, that she is now suitable for a Community Service Order. To her credit also Ms McKenzie revealed her relapse to her general practitioner and has discussed with her doctor, and her counsellors, what led to that relapse.

1. I should mention that Ms McKenzie's plea of guilty is of course consistent with her willingness to facilitate the course of justice and so the sentence that I will impose upon her is 25 per cent less than it otherwise would have been.

1. Ms McKenzie is clearly distressed by the position that she now finds herself in, a position of course that she has put herself in through her illegal conduct. She is able to look back, with a clearer mind than she had at the time, to the way she was behaving in 2009 and to recognise that what put her in the position she is today was her drug use. She is clearly distressed by her present predicament and fearful of going to gaol.

1. The Crown seeks a full time custodial sentence. Ms Paul, who appears for the offender, seeks a suspended sentence under s 20(1)(b) of the Commonwealth Crimes Act . I do propose to impose a suspended sentence upon Ms McKenzie. Notwithstanding that that can be thought to involve little punishment, I am satisfied that it is appropriate to focus more on Ms McKenzie's personal rehabilitation than it is to focus on other aspects of sentencing. That is not to say, of course, that I have ignored such things as general deterrence and retribution, but it is to say that in the present case I consider that if I can fashion orders which see Ms McKenzie turning away from drug use, then she will once again become a valuable member of the community. Not only will she benefit from that but of course the community will as well.

1. However it needs to be understood that the position I am taking is a lenient one, that Ms McKenzie was very close to going to gaol full time and that any breach of the conditions under which I will suspend the sentence will see her receiving the sentence which, in one sense, she richly deserves.

1. Ms McKenzie is sentenced to be imprisoned for two years to date from 1 September 2011. I make a recognisance release order. I direct the offender be released forthwith upon giving security in terms I will now specify.

1. The conditions of the recognisance release order and the order that the offender be released from custody forthwith are conditional upon the offender entering into a recognisance, self in the sum of one thousand dollars, the conditions of which are:

(1)   she is to be of good behaviour,

(2)   she is to be supervised by the Probation and Parole Service and obey all reasonable directions of that service,

(3)   she is to consume no illegal drugs, whatsoever, no matter what pressure she perceives that she is under,

(4)   she is to prove compliance with condition 3, by providing at her own expense, to the Probation and Parole Service results of monthly urinalysis and to undergo further random urinalysis at the direction of the Probation and Parole Service,

(5)   any breach of these conditions is to be brought to my attention immediately.

1. Now Ms McKenzie, the prosecution wanted me to send you to gaol straight away, you know that do you not. Ordinarily I would have done that without any hesitation, especially given your relapse in the interim. It is a sentence that, as I said a little while ago, you richly deserve. However I am going to take a chance that you can put your drug use behind you. In one sense I do not really care whether you use drugs or not, I mean it is your life, you can do what you like with it. But when you commit offences by using drugs and more importantly when you harm the community by using drugs and then importing them that is when things get serious. So I put you on very strict conditions for two years, you cannot use any drugs at all, if you do there is going to be but one consequence and that is that you go to gaol. Now I have spent a bit of time visiting the gaols and I can tell you that they are terrible places. In particular the gaols that women serve their sentences in are awful, so not only will you be in a place where you are confined but you will be in a place where the conditions are terrible.

1. Now do you want to ask me any questions about what I have done?

1. OFFENDER: No, no.

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Decision last updated: 27 October 2011