R v Mackay

[2020] NSWDC 230

District Court of NSW|2020-05-14|Before: Spigelman CJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-05-14

Before

Spigelman CJ

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Contents Judgment Introduction Form 1 procedure Standard non-parole period The facts and objective seriousness Count 1. Section 93T (4A) direct activities of a criminal group Counts 2, 3, and 4: supply large commercial quantity of MDA pills x 2 and MDMA pills x 1 Count 5 supply commercial quantity of cocaine Count 6 supply commercial quantity of MDa pills Counts 7, 8, and 9; deemed supply of a commercial quantity of MDA; possess proceeds of crime and possess unregistered firearms Section 21A. Subjective case Psych report Testimonials Guilty plea Criminal history Likelihood of reoffending Remorse and contrition Prospects Conclusion on subjective case Parity Totality Special circumstances Sentencing considerations Indicative sentences Orders

[2]

Introduction

The offender appears for sentence on 9 charges. One of them is a charge of direct activities of a criminal group and another is the possession of more than 3 unregistered firearms. A third is dealing with proceeds of crime in the very modest amount of $1580. The remaining 6 are very serious charges of supplying large commercial quantity (3 counts) and supplying a commercial quantity (3 counts) of prohibited drugs. In respect of the count of directing the activities of a criminal group the maximum sentence is 15 years imprisonment with no standard non-parole period. For the large commercial quantity supply charges the maximum sentence is life imprisonment with a standard non-parole period of 15 years. For the supply commercial quantity charges the maximum sentence is 20 years imprisonment with a standard non-parole period of 10 years. For the firearms charge the maximum sentence is 20 years of the standard non-parole period of 10 years. The possess proceeds of crime charge has a 15 year maximum sentence of imprisonment and no standard non-parole period.

[4]

Standard non-parole period

The standard non-parole periods are to be considered a guidepost in the same way as the maximum sentence is to be considered a guidepost. I take the view that there is nothing in the Division 1A Crimes (Sentencing Procedure) Act ("the Act") provisions to the effect that these provisions only apply to matters that have been determined by a trial, and not those that have proceeded by a plea. At [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that "the obligation applies in sentencing for all Division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences". The obligation being referred to was the central purpose of Division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.
Of course, in complying with the obligations of Division 1A there will be noted the fact of the early guilty plea. Any variance from the standard non-parole period will take that fact and the other subjective matters of the offender discussed below into consideration. Notably, some of these factors would not have been so prevalent in a matter determined by a trial such as for example recognition of wrongdoing, contrition and remorse which I note are all matters which are prominent in the present case.
As aptly stated elsewhere, the SNPP is a guidepost and not a tram track. The matter is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than the standard non parole period.

[6]

Count 1. Section 93T (4A) direct activities of a criminal group

The offender was identified as the leader of the Coffs Harbour operation supplying drugs to Armidale. The facts name a non exhaustive list of 6 people to whom he gave directions as to obtaining drugs and collecting money involving Wylie and Faulkner. For some months the offender did not personally engage with Wylie and Faulkner but dealt with them on social media using self erasing messages. Examples of his activities under this charge are set out in the facts and show him organising people to make the deliveries of drugs and giving advice as to how to conduct themselves. Of the 5 examples given the amount of drugs involved was 500 ecstasy pills or 135 g; 989 MDA pills or 258 g; two 28 g MDMA transactions; and 300 pills of MDA or 65 g. The period of time over which these events occurred is extended from 26 October 2017 through to 20 September 2018.
A key element of this charge under subsection (4A) is that the direction is ongoing. That is why it has a more severe sentence than for example subsection (1A) which is simply directing the criminal activity. In my view the period over which the activity is ongoing is relevant and in this case it is a full year. I note the number of people under the offender's direction was at least 6. Furthermore the quantities involved on 2 of the examples given are beyond the commercial quantity and the remainder are not trivial. There is a degree of sophistication involved here with the use of the self erasing communications.
Beyond that there is little to assess just how complex and profitable this activity was. So far as profit is concerned the Crown did rely on some evidence of the offender boasting in a way that suggests he had a significant amount of money. Given that he had no lawful employment during 2018 the conclusion that it was sufficient at the very minimum to support him without working and in a comfortable manner is an open finding that I make. At the same time I accept the point made by the offender that the evidence also showed a fairly modest lifestyle and no evidence of what might be termed expensive toys. The offender's reporting to the psychologist however showed there was significant cash available to the offender.
I accept the submission of the offender that caution needs to be exercised to not doubly penalise the offender for this charge and the balance of the indictment. I note the clear statement by the Crown that this is the correct approach.
On balance I would assess the objective seriousness of this offence as being just below mid range.

[7]

Counts 2, 3, and 4: supply large commercial quantity of MDA pills x 2 and MDMA pills x 1

These offences carry a maximum sentence of life imprisonment and a standard non-parole period of 15 years. It goes without saying that they are very serious offences. The facts relating to them are very similar and without in any way minimising the gravity of the situation they can be shortly summarised. On each occasion the offender utilised Talissa Kelly to assist in the supply of these drugs in a way that in her sentencing judgment was described as being a gopher. She did what she was told by the offender. On each occasion the drugs were supplied in Coffs Harbour to Wylie and Faulkner who then on supplied the drugs to an undercover operative in Armidale. The first 2 counts were supplying MDA in the third MDMA.
On 2 occasions it was necessary for the gopher to drive to Tweed Heads from Coffs Harbour to collect the pills to be supplied. In respect of counts 3 and 4 the method of operation was for the customers to pay in advance with that money then being used by Mackay to buy the drugs from his own suppliers. On the other occasion namely count 2, $10,000 was paid in advance and the balance of the price of $16,500 on delivery. The method of counts 2 and 3 suggests a fairly basic unsophisticated operation extending to Wylie waiting in Coffs Harbour the entire time that the gopher drove to Tweed heads and back. The facts also make it difficult to determine precisely what profit was made other than to surmise that it was a fairly tight margin.
On each count the amount involved is only slightly beyond the 500 g threshold to be a large commercial quantity and I take that fact into account. It is very adverse to the offender that he is the major operative in this operation. He is no mere runner or courier. He is a person who on these facts is able to source significant amounts of illegal drugs and then organises for the gopher/mule to take the majority of the risk in delivering the drugs and collecting the money.
I acknowledge the authorities which indicate that quantity is not necessarily a significant factor. That said I would also note that in Newman (a pseudonym) v R [2019] NSWCCA 157 it was said (at [10]) when dealing with an error by the sentencing judge as to the weight of the drug:
Clearly the error could have affected the sentencing: there is a significant difference between a quantity which is only marginally above the threshold and a quantity which is more than twice the threshold.
But for that consideration I would have considered this offending to be more objectively serious due to the high level role in the offending by the offender. I assess the objective seriousness as being just below the mid range.
2 of these counts have related form 1 matters namely counts 2 and 4. Both of the form 1 matters are supplying a commercial quantity of MDMA. The facts do not disclose the circumstances of these form 1 offences beyond the fact that they are supplies of commercial quantities of MDMA. I accept the submission of the Crown nevertheless that in line with the form 1 procedure the sentence of these offences will reflect greater weight being given to personal deterrence and retribution.

[10]

Counts 7, 8, and 9; deemed supply of a commercial quantity of MDA; possess proceeds of crime and possess unregistered firearms

The offender was arrested on 21 December 2018. A search warrant was executed at his girlfriend's residence. Here the offender was found in possession of 210 g of MDA pills, and cash of $1580. A subsequent search at another location located 6 firearms and ammunition.
I consider it open to conclude that the 210 MDA pills were stock for the ongoing drug trade in which the offender was engaging. It is comfortably over the threshold for commercial quantity albeit far remove from the large commercial quantity. I would assess this as low mid range.
Given the amount involved with Count 8 I consider that a minor offence and assess it to be at the low level of objective seriousness.
The firearm offences are serious. Three of the weapons are prohibited and two of those are shortened. Another two are shortened firearms. All of the weapons bar one were in working order. The one saving grace for the offender on this charge is that the count on the indictment is expressed to be possessing these weapons between 19 December and 21 December 2018 due to the fact that it was on 19 December that he was seen taking these weapons into a storage facility. Even allowing for that short period of possession the nature and character of 5 of these weapons is serious. Great efforts are taken to remove prohibited weapons and dangerous weapons from the community and to possess this number of unregistered firearms I consider a grave matter and I assess it as being in the mid range of objective seriousness. The risk with weapons such as these being in the community is self evident both with their potential criminal use, and the danger they pose by simply being in circulation.
I note the submission for the offender that there is no evidence of any use of these weapons by the offender. About that I am not so sure. In the preceding 6 months the agreed facts show significant dealing in drugs and numerous meetings in which to affect those transactions. The offender is a person who is in control of the Coffs Harbour operation as it has been called. As a process of circumstantial reasoning it seems to me to be borderline absurd to suggest that there is some other reasonable hypothesis or conclusion to draw in the circumstances other than that these weapons were used in connection with the drug dealing. What is the other reasonable hypothesis? The answer to that is none. However the terms of the indictment restrain me from making the ultimate conclusion that I consider obvious. Accordingly as the charge is for possession of these weapons for only two days the matter needs to be assessed accordingly. There is as the offender rightly points out simply no evidence as to these weapons and the offender's connection to them prior to 19 December. For that reason I feel constrained to assess the objective seriousness of this matter as being below the mid range.

[12]

Psychologist's report

A report of a forensic psychologist Katie Martens was relied upon by the offender. The significant aspects of that report are as follows: 1. The offender was raised by his parents until they separated when he was about 14 or 15. He has had little contact with his mother since, though I note she wrote a moving testimonial that was in evidence. He has 3 siblings. He described his childhood as average and reported no form of abuse. His father did consume alcohol to excess. His father was reportedly involved in cannabis supply and died when the offender was 17 which had a significant effect on him including turning to drugs to cope. His mother had a gambling addiction. 2. In what appears to be a partly contradictory history he then said he was asked to leave home at 13 having driven his father's car without permission. He lived with his brother for a time. 3. His schooling was unsuccessful ending in expulsion in year 7 and no further study. He does have some work history but has not worked for the past 2 years. 4. He has a history of substance misuse commencing at age 14 with alcohol resulting on his account in consuming at least a carton of beer daily at the time of arrest. His drug use included cannabis at first then heroin for one year at age 20 followed by cocaine up to the time of his arrest at a cost of $8000 per week. In passing this gives some weight to the surveillance evidence of the offender boasting of his cash flow. He also often used MDMA and MDA. His addictive nature extends to gambling and he stated he would spend between $3-$4000 each occasion he gambled which was regularly. This led to significant debts he could not repay. 5. The psychologist says he presented with no insight into his drug use which he said he had never attempted to cease and did not consider he required intervention though is willing to engage in it if directed by the courts. 6. He has a current partner of 3 ½ years standing and a 6-year-old daughter to a previous five-year relationship. He says contact with his daughter is regular. 7. He explained the current offending as being in the context of heavy drug use. He said he regretted his actions. He says a drug debt and fears for daughter's safety concerns him presumably to the effect that that caused him to continue offending. Apparently the debt which was vaguely described as $30,000 to $40,000 is now repaid. He expressed an intention to refrain from criminal conduct upon release and intends to study. 8. As to his mental health he described past low mood and emotional lability which appears secondary to his significant substance use. 9. The case formulation is essentially that there is a lack of emotional intimacy with his parents and their addictive behaviours serve to normalise abuse of substances and gambling as a means to cope. The psychologist is of the opinion that the offender suffers from cocaine dependence, a gambling disorder and alcohol use disorder as at the time of the offence. He lacks insight into his addictive behaviours and is likely at risk of relapse. Intensive programs in drug and alcohol treatment are recommended.

[20]

Parity

The parties spent significant time debating the parity issue with Mr Wylie's sentence. The connection between them is that in respect of counts 1 through to 5 the offender was supplying Wylie. In 3 of those counts namely counts 2, 3 and 4 Wylie in turn supplied an undercover operative. Wylie is involved at the Armidale end of the drug operations the subject of a strike force. There is a basis for parity in respect of these counts. Thereafter the matters diverge for the aggregate sentence received by Wylie encompassed punishment for no less than 4 counts of sexual intercourse and a total of 17 offences and 34 form 1 offences. Many of those form 1 matters were relatively small amounts of MDMA or cocaine being supplied and so the simple number of them is perhaps misleading. Wylie's charges relating to drugs other than the charges I might call the 3 common charges between these two offenders range from rolled up counts for 281 g of cocaine and 501 g of MDA to 184 g of methyl amphetamine and 1190 g of cannabis. There was also an assault occasioning actual bodily harm matter but there were no firearms offences.
Mr Wylie's subjective case had similarities to the offender's in that his family was dysfunctional and his father had alcohol and gambling addictions. It does not seem however that Mr Wylie fell into the way of drug abuse at quite the same young age as the offender and his prospects for rehabilitation appear more promising. I would also note that Mr Wylie was 20 at the time of the offending as opposed to the offender who was somewhat older at 24, though still young.
The Crown's approach which has the attraction of simplicity is to simply look at the sentences received by Wylie for the 3 common offences which was in respect of 2 of them 2 years 9 months each as an indicative sentence and on the third one a three-year indicative sentence.
I should note that there was also in common a section 93T offence though with Wylie being charged under subsection (1A) as opposed to the (4A) offence with the difference being the latter is ongoing.
The offenders approach was far more calculated seeking to compare by an analysis of the agreed facts how much of which of the various drugs had been supplied by the 2 offenders. This showed that a greater amount of MDA had been supplied by Wylie, that the offender supplied more cocaine and Wylie supplied significantly more MDMA as well as methyl amphetamine and cannabis which the offender did not supply at all.
The offender acknowledged the limitations of this analysis but used it to found the submission that Mr Wylie's activities appear more extensive. It was also acknowledged that Mr Wylie is "downstream" of the offender but then tried to temper that by arguing the offender is simply a go-between.
The ultimate submission as to parity for the offender was that the sentence for Mackay should be comparatively less once the sex offending is considered.
The Crown's ultimate submission as to parity was to focus on the 3 common offences. Although not set out in the written submission the oral submission focused on the offender being above Wylie in the hierarchy involved in the supply of the 3 common offences from which I infer it is being submitted that there should be greater indicative sentences for those matters. Beyond that the Crown position is that the need for comparison ends.
The view I take is that limiting ourselves to the drug matters the offender occupies a position higher up the hierarchy of the respective drug operation. I will bear this in mind when sentencing for the 3 common matters. Beyond that comparison becomes precarious given the disparity in the nature of their other serious offending i.e. sex offending versus firearms offences. The other difficulty is that whilst we know the indicative sentences it is very difficult to discern if indeed possible at all what portion of the aggregate sentence is referable to the 3 common offences. The ultimate sentence imposed on Wylie was 7 years imprisonment with a 3 ½ year non-parole period. What that suggests is that Hunt DCJ considered that the proportional sentence for the common offences was some period of imprisonment without parole of less than 3 ½ years.

[23]

Sentencing considerations

There is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA.
Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
The purposes that attract the most attention in the present case in my view are to denounce this behaviour and deter both the offender and generally. At the same time the sentence should not be so crushing so as to minimalise the prospects of rehabilitation.
The Crown has helpfully outlined the passages of Parente v R [2017] NSWCCA 284 setting out the general principles relevant in sentencing in drug supply matters. This includes firstly considering the purpose of sentencing as set out above and emphasising the need for deterrence and the need to protect the community. Secondly the courts are to be mindful of the maximum penalties. Thirdly without imposing any mandatory rule serious drug offending ordinarily results in imprisonment, a matter not contested on the facts of this case. Fourthly attention was drawn to section 5 CSPA.
It was not argued here that anything other than a custodial sentence was appropriate. Bearing all the above factors in mind and applying a 25% discount in light of the guilty plea what I propose to do is to set out the indicative sentences for each count on the indictment, taking into account when relevant the form 1 matters and to then impose an aggregate sentence. The sentence will date from the date of the offender's arrest of 21 December 2018. The non-parole period will reflect my finding of special circumstances. I will also indicate in respect of the standard non-parole period matters what non-parole period I would have imposed in respect of those matters had I not proceeded by way of an aggregate sentence.