The State of Western Australia v MacKenzie - [2011] WASCA 116

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACKENZIE [2011] WASCA 116

CORAM: McLURE P
PULLIN JA
MAZZA J

HEARD: 12 APRIL 2011

DELIVERED : 13 MAY 2011

FILE NO/S: CACR 19 of 2011

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
CHAD DERREN MACKENZIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1360 of 2010

Catchwords:

Criminal law - Court order presentence order - Drug trafficking offences and other imprisonable drug offences - Whether the sentencing judge erred in making a presentence order

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1)(a)
Criminal Investigation Act 2006 (WA)
Misuse of Drugs Act 1981 (WA), s 5(1)(d), s 6(1), s 6(2), s 34(1)(a), s 34(2)(a)
Prisons Act 1981 (WA), s 79
Sentencing Act 1995 (WA), pt 3A, s 33A, s 33A(2), s 33A(3), s 33A(3)(b), s 33A(3)(c), s 33A(5), s 76, pt 13

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr P D Yovich
Respondent: Ms V Amidzic

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Amidzic Lawyers

Case(s) referred to in judgment(s):

Bellissimo v The Queen (1996) 84 A Crim R 465
Haasy v The State of Western Australia [2010] WASCA 207
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Buck [2010] WASCA 188
The State of Western Australia v Fleming [2010] WASCA 162
The State of Western Australia v Hatch [2008] WASCA 162
The State of Western Australia v Johnson [2010] WASCA 187
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

McLURE P: I agree with Pullin JA. At the time the sentencing judge made the pre‑sentence order (PSO), a sentence of immediate imprisonment was the only appropriate sentencing option and would remain so even if the respondent were to comply with the PSO. The circumstances of the indictable offences were serious having regard to the quantity of the prohibited drugs, the level of purity of the methylamphetamine, which placed the respondent close to the source of manufacture, and the steps taken by the respondent to dispose of some of the drugs in his possession prior to his arrest.
Further, the appellant had a prior record of convictions for drug offences. In March 2005, he was convicted of multiple offences under s 6(1) of the Misuse ofDrugs Act 1981 (WA) (selling amphetamines or being in possession of amphetamines with intent to sell or supply). A total sentence of 3 years 8 months' imprisonment was imposed for those offences and the respondent was declared to be a drug trafficker. In 1997, the respondent was convicted of one count of possession of cannabis with intent to sell or supply.
The respondent was aged 39 when he committed the offences. Although he had a long history of entrenched drug abuse,…

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 The State of Western Australia v MacKenzie

Details

AGLC: The State of Western Australia v MacKenzie [2011] WASCA 116
Case: [2011] WASCA 116
Decision Date: 13 MAY 2011

CaseChat Overview and Summary

The State of Western Australia brought proceedings against MacKenzie, who was found guilty of drug trafficking and other drug-related offences. The case was heard in the Supreme Court of Western Australia. The State argued that the sentencing judge had erred in making a pre-sentence order which MacKenzie was to comply with before sentencing. The order required MacKenzie to undergo a psychiatric evaluation and to report to a probation officer. The State claimed the order was inappropriate given MacKenzie's criminal history and the severity of the offences.

The central legal issues the court needed to address were whether the sentencing judge had the authority to make the pre-sentence order and if the order was appropriate in the circumstances. The State contended that the order was not warranted by the nature and seriousness of the offences, nor by MacKenzie's criminal history. They argued that such an order was unnecessary and could potentially delay the sentencing process. Conversely, MacKenzie's legal team argued that the order was within the sentencing judge's discretion and was appropriate to ensure that the court had all necessary information to impose an appropriate sentence.

The court found that the sentencing judge had the authority to make a pre-sentence order and that the order was appropriate. The judge considered the need for a comprehensive understanding of MacKenzie's background and mental health, which was deemed necessary to fashion an effective sentence. The court held that the order did not constitute an error in the sentencing process and was not an undue delay. The judge's decision was supported by the circumstances, including MacKenzie's criminal history and the nature of the offences. The court confirmed that the pre-sentence order was both necessary and proportionate, and thus did not constitute an error.

The final orders of the court upheld the sentencing judge's decision, confirming that the pre-sentence order was correctly made and did not constitute an error. The court emphasised the importance of obtaining a thorough understanding of the offender's circumstances to ensure an appropriate and effective sentence. The decision reinforces the sentencing judge's discretion in making pre-sentence orders where deemed necessary.

Orders