R v Mackie

Detain offence

1. The victim in the matter is Shaynaya Fitzpatrick, a woman who is in her 20s; she was a friend and neighbour of a Mr Cody Ryan who lived in the same street. At approximately 3.30pm on or about 23 April 2018, Mr Ryan and a friend approached her when she was standing in the front of her house at 8 Cumberland Street West Bathurst. Mr Ryan asked her if she could take him to see her uncle, a Mr Paul Fitzpatrick. She asked "How do you know Paul" and Ryan replied "Don't worry, can you get Paul to come and see me please" and she was offered $200 by the other man, if she could arrange for her uncle to come and see them. She agreed to speak to her uncle which she did do and requested him to attend Mr Ryan's house later that day and the uncle declined to do so.
2. On 26 April 2018, the facts referred to male 1 contacting the co-offender Shanahan, and there is no issue as I would see it that male 1 was the co‑offender Moran, who I have just sentenced on this offence, and offered him money to take the co-offender Moran to a friend's house in Bathurst. Shanahan agreed and drove Mr Moran and that is shown as - there is evidence to show that they drove to Mr Ryan's house at 55 Hill Street and arrived there at about 10.24pm, stayed for about 90 seconds with Mr Moran getting out and speaking to Mr Ryan.
3. On 30 April 2018, the co-offender Shanahan received a message from this offender, Mr Mackie, saying can you give me a lift. Shanahan agreed and roughly ten minutes later he received another message from this offender saying that he was out the front. Shanahan went out to the front of his house and saw this offender, Mr Mackie, Mr Moran and the co-offender Mr Veatufunga. Shanahan was offered $400 to drive the three of them to Bathurst to "visit a friend".
4. Shanahan then drove the co-offender Moran, this offender and the co‑offender Veatufunga from his house in Springwood to Mr Ryan's house at 55 Hill Street Bathurst. Shanahan was the driver and this offender was in the front passenger seat and Veatufunga was in the back and Mr Moran was sitting in the back seat, directly behind the front passenger.
5. The victim was visiting her grandmother that evening who lives at 8 Cullen Street Bathurst which was located two doors down from Mr Ryan's premises. Upon arriving at Ryan's premises, Mr Moran got out of the vehicle and went and spoke with Ryan. Ryan and Mr Moran then walked from Ryan's house up to the victim's grandmother's house.
6. Shanahan drove his vehicle and stopped out the front of the victim's grandmother's house. He left the vehicle running with the headlights on.
7. Sometime around 9.35pm, the victim had been watching television with her friends and relatives and became aware that Mr Ryan was outside the house calling for her. She put on her jacket and scarf and went to the front door. He was standing with Mr Moran. Mr Ryan was standing with Mr Moran.
8. She asked "What do you want" and Ryan replied "Come down the stairs for a minute, I want to talk to you." The victim approached Mr Ryan who was standing next to Mr Moran. The victim said "Who is this" and Ryan replied "This is my mate". The victim and Mr Moran shook hands. Ryan said he will give you 100 grand if you tell him where Paul's money is. The victim replied "You're joking aren't you, what money?" Mr Moran said "I'm a friend of Cody's, just tell us where the money is and we'll give you a big cut of it". He then said words to the effect of, "What if we kidnap you?", and the victim said words to the effect of, "Even if I did know where such money was I wouldn't tell you anyway." They continued to talk several minutes with Mr Moran asking for the location of the money and Ryan repeatedly saying "Just tell him."
9. Shanahan who was in the driver's seat of the vehicle yelled out for them to hurry up. The victim asked "Who's that?", and Mr Moran replied "It's my driver." The victim turned around and started walking back towards the house. The co-offender Mr Moran grabbed her arms, covered her mouth and pulled her back towards the utility which Shanahan was the driver of. While she was struggling with Mr Moran, Ryan lifted up her legs and they both carried her to the ute which was roughly four metres from where they had been standing. Around this time, Moran removed his hand from the victim's mouth and she started screaming for help and Ryan ran off.
10. The back seat door was opened by the co-offender Veatufunga and Veatufunga started pulling the victim inside by the legs. She fought against him to stop him pulling her into the vehicle and was kicking and had her feet against the tray of the utility. The victim was forced into the back seat of the vehicle. The co-offender Moran got into the back seat and sat beside her. The victim was in the middle seat with Veatufunga on the right of the victim and Mr Moran on the left. Mr Moran said "Go get out of here" and the utility took off. The victim's stepsister saw her leave the house, speak to Ryan and approximately a minute later she heard the victim screaming. There is a call to triple 0 by witnesses who were at the home where the victim was. That call was at about 9.51pm.
11. In terms of what occurred in the car, the co-offender Mr Veatufunga pushed the victim's head down as they drove around the west Bathurst area. They kept saying to her, that is the occupants of the car, "Where's Paul's money, we want to know where Paul is." Mr Veatufunga was in the back seat and this offender was - they both were aggressive and hostile towards the victim saying things such as "Shut this bitch up" and "we are bad men". As well as talking to the victim, the males were also talking amongst themselves. The victim was screaming and crying throughout. They drove towards Orange for approximately 20 to 25 minutes before pulling off the highway onto a dark driveway.
12. The co-offender Moran and this offender got out of the vehicle and started talking. The co-offenders Veatufunga, Shanahan and the victim remained in the car. Mr Moran and this offender told the victim to get out of the vehicle but she refused and she was scared. The co-offender Mr Veatufunga started shuffling towards the victim to push her out the left hand side of the door.
13. She eventually got out of the vehicle and Mr Moran and this offender told her that they believed her when she said she did not know the location of her uncle's money. They wanted her to show them where he lived. She replied that she had not spoken to her uncle for a year and she did not know where he was living.
14. They all got back into the vehicle and started driving back towards Bathurst. Mr Moran told the victim that they would give her some money for helping them and gave her $300. She was crying. They stopped near her grandmother's house in Blackett Close and one of the males told her that he knew Paul would stay there from time to time. The victim was then driven towards her house. When they got to Cummings Street Mr Moran said "Get ready to run". The vehicle stopped and the victim was pushed out of the car. She ran home. The offenders drove away.
15. The triple 0 call was made as I said about 9.51pm and police arrived at the house at 9.59pm and the victim returned at approximately 10.48pm.
16. This offender was arrested by police on 25 July 2019.
17. In relation to the detention offence, there is a victim impact statement before me from the young female victim. Clearly that offence has had a real impact upon her.

Drug offences

1. In terms of the facts concerning the supply of prohibited drug offence; on 11 March 2020 police officers from the Drugs and Firearm Squad were conducting a covert surveillance operation on someone called Pierre Huber who was driving a Volkswagen Caddy, with the registration number set out in the agreed facts. The offender Mr Mackie was not the subject of the surveillance operation and only came under police notice when his vehicle pulled in behind Huber's whilst Huber's vehicle was under surveillance.
2. At 2.50pm Huber drove down Linksview Avenue Leonay before continuing on Fairways Avenue. At 4.12pm, he returned in his vehicle to Linksview Avenue Leonay and pulled out to the side of the road out the front of number 6. Seconds after Huber pulled to the side of the road, police saw a silver Ford Ranger, with a particular registration number and a blue Ford Ranger turn down Linksview Avenue Leonay. The driver of the Blue Ford Ranger was a Charles Harper and the driver of the silver Ford Ranger was the offender. The offender pulled his vehicle in behind Huber's and left the driver's side door. He was carrying a white shopping bag in his hand. He walked up to Huber's passenger's side window where he remained from between ten to fifteen seconds before returning to his vehicle, still carrying the white shopping bag. He re‑entered the driver's side door of his vehicle and drove away from Linksview Avenue.
3. At around 4.45pm the vehicle the offender was driving was stopped by police. He was the only person in the vehicle and was sitting in the driver's seat. Police searched the vehicle and inside the driver's side door compartment was a white Coles plastic shopping bag containing a torn yellow envelope with the words Emu Plains written across the front in red texta. Inside the torn yellow envelope, police located within a knotted sandwich bag a large block of white fluorescent powder.
4. Also in the vehicle police located in the centre console two pill bottles containing 73 small orange pills, an Apple iPhone and a Samsung mobile phone wrapped in foil. The offender was placed under arrest and cautioned and taken to Riverstone Police Station and declined to participate in an interview.
5. In terms of the drug analysis, the white block of powder located in the offender's vehicle was subject to testing. The drug was identified as being 499.8 grams of cocaine with a purity of 42.5% hence the primary count. The two bottles containing the 73 pills were also sent for analysis. Inside the plastic bottle labelled Stanozolol 10mg, were 40 orange/red tablets weighing 4.64 grams of that substance. The other bottle contained 33 yellow round tablets containing the same substance 3.23 grams. In total, there was 7.87 grams of that substance in the offender's vehicle and that's the offence on the Form 1.

Objective seriousness

1. In terms of my assessment of the objective seriousness of the offences: As I said when sentencing the co-offender Mr Moran on the detention offence, the period of the detention, the circumstances, the nature of the detention together with the purpose of the detention are all relevant factors to consider in assessing the objective seriousness of such an offence. The detention offence appears to have some connection with the drug trade. There appears to have been a financial motive behind the detention being to find out information which would lead to the offender and his associates obtaining the victim's uncle's funds. This offender was involved in a joint criminal enterprise involving the detention of the victim. He is criminally responsible for the whole offence, although his actual role in it is relevant to the sentence to be imposed. There appears to have been some limited planning involved in the offence given what had passed on the days prior to it. However, I cannot find beyond reasonable doubt on the agreed facts, concerning this particular offender, Mr Mackie, that he knew prior to the victim being forced towards the vehicle that she was to be detained. While he does not, in the agreed facts, use force himself to push or drag the victim to the vehicle, he was aggressive and hostile towards her once she was in the vehicle and said things to her that terrified her once she was inside. As I said when I sentenced Mr Moran, I consider that the detention offence to be below the mid-range of objective seriousness but not at the bottom of the range.
2. In relation to the supply commercial quantity of cocaine offence, the amount and purity of the drug are relevant but not determinative factors on sentence. Here, the amount was 499.8 grams of cocaine which was essentially twice the commercial quantity and half of a large commercial quantity. The purity level of the cocaine was 42.5% which is not an overly high level of purity.
3. An offender's role in drug supply offences is a particularly relevant matter to have regard to when imposing sentence for such offending. Here, the offender's role is properly characterised as that of a courier and therefore, essentially at the bottom of the hierarchy of persons involved in the supply chain. Couriers are, however, an important cog in the chain of supply. Without people prepared to engage in that role, taking the associated risk, supply of commercial quantities cannot be undertaken.
4. Here the offender took part in a planned supply. There is an overwhelming inference he did so for some anticipated financial reward. I assess the objective seriousness of the offence to be below the mid-range of objective seriousness but not at the bottom of the range.

The offender's subjective case

1. Turning then to the offender's subjective case. His date of birth is 17 August 1997, so he is currently 23 years of age. He was only 20 years of age at the date of the commission of the detention offence. He was 22 years of age as at the date of the supply of the drug offence. He is, therefore, a young adult offender and the principles applicable to the sentencing of young adult offenders apply to him. Those principles are that it is usually more appropriate to give greater weight to rehabilitate and treatment and general deterrence, denunciation and retribution when sentencing a young adult offender, (see the summary of relevant principles in Bullock v R [2016] NSWCCA 131 referring to BP v R [2010] NSWCCA 159).
2. The offender has no relevant criminal history which entitles him to some leniency in the sentence. At the time of the commission of the supply prohibited drug offence, the offender was on bail for the detention offence which is an aggravating factor on sentence as the supply drug offence was committed while on conditional liberty.

Sentence Assessment Report and psych reports -

1. There is a Sentencing Assessment Report, a report dated 9 December 2020 under the hand of Nicholas Lividis, a psychologist, and a letter of apology from the offender. The offender did not give evidence on sentence but his father did.

Family background

1. In terms of his family background, the Sentencing Assessment Report records that the offender is single with no dependants. He reported to the author of that report the availability of a large pro-social extended family and social support. That report also noted that the offender had normalised familial violence. The offender's family background is more fully described in the psychological report of Mr Lividis. The offender hails originally from New Zealand, his family having migrated to Australia in 2002. He is the second youngest of six siblings.
2. The offender's father gave evidence that as a young boy the offender showed promise as a rugby league player but suffered from depression over time. The offender's father confirmed that when released from custody, the offender will reside with his parents and hopes that the offender will work with him in his business. I note, however, that the drug supply offence occurred when the offender was bailed to live with his parents.

Education and employment history

1. In terms of education and employment, the psychological report records that the offender left school in Year 11 to work in the construction industry. In 2014, he completed a certificate in personal training. A Sentencing Assessment Report records that in terms of employment, the offender at the time of his remand had been receiving cash payments for scaffolding work. The Sentencing Assessment Report also records that he has an offer of employment in the construction industry upon his release from custody

Substance use

1. In terms of his use of illicit substances, the offender Mr Mackie disclosed to the author for the Sentencing Assessment Report, daily use of cocaine commencing in 2018, estimating that he had been using 3.5 grams of cocaine a week. He described to the author of that report that as at the time of his arrest, his social network centred around socialising and associated drug intake.
2. The offender's father in his evidence, detailed some of the drug taking incidents involving the offender. The father also detailed that when the offender was somewhere between 18 and 20 years of age, he disclosed to the father the abuse he suffered as a child.
3. The offender told the psychologist that he commenced drinking alcohol at the age of 13. He reported that he commenced using cocaine when 18 and that he used cocaine to control "thinking about the sexual abuse and flashbacks". The psychologist considered the offender had a diagnosis of substance use disorder.

Psychological/psychiatric history

1. The Sentencing Assessment Report records that the offender recounted a deterioration of his mental health in 2018 associated with illicit drug use. He is recorded as having ceased his prescribed medication due to side effects. The offender told the author of the Sentencing Assessment Report that he had no current concerns in relation to his mental health and he is not receiving any treatment while in custody.
2. The psychological report records that after psychological testing, the offender recorded scores indicating a moderate range for depression, a mild range for anxiety and scores that suggest he meets the criteria for post-traumatic stress disorder. The psychologist considered the offender had a diagnosis of PTSD. The psychological report records that the offender provided a history of sexual abuse as a child.
3. The severity of his post-traumatic stress symptoms was assessed as being in the severe range. The psychologist considered the offender reported clinically meaningful levels of trauma specific dissociation, substance abuse and suicidality. The offender also reported to the psychologist having nightmares about his abuse. The psychologist noted that the offender had not received any treatment for his PTSD and that his illicit substance use was linked to his PTSD.
4. He was found by the psychologist to have an IQ that was in the average range. The offender's father, in his evidence, described a suicide attempt by the offender while he was under the influence of illicit substances. The offender's illicit substance use difficulties, on the evidence, are linked to his mental health condition, his PTSD which itself appears to be linked to the abuse he suffered as a child. In such circumstances, I consider that it is appropriate to have regard to his impaired judgment from such substances at the time of the offences and that there should be some mitigation of the sentence, for those reasons. See in that regard the discussion in The Queen v Henry (1999) 46 NSW 346.
5. I also consider that his mental health condition lessens the need to emphasise general deterrence when imposing sentence for these offences, although it does not remove general deterrence completely from consideration in the exercise of the sentencing discretion. In that respect I have considered the principles discussed in DPP (Cth) v De la Rosa [2010] NSWCCA 194.

Response to supervision

1. The Sentencing Assessment Report records that the offender has not incurred any drug infringements while in custody but notes that he has not been the subject of drug testing. The Sentencing Assessment Report also records that his time in custody has involved multiple incidents of violence and that the offender tended to minimise those incidents.

Attitude to the offence

1. The Sentencing Assessment Report records that the offender Mr Mackie claimed to have had no knowledge of any pre-planning of the detention offence to which he has pleaded guilty. He is recorded as disputing aspects of the agreed facts. He told the author of the Sentencing Assessment Report he had simply gone "along for the ride with his mates" and reported no question of concerns as to the activities of his associates prior to the offence.
2. The Sentencing Assessment Report also records that the offender described loyalty to his associates and that he was conscious of not disclosing any information which could be perceived as detrimental to his peers. I have already indicated that I could not be satisfied beyond reasonable doubt that the offender knew the victim was to be detained until she began to be forced towards the vehicle.
3. The Sentencing Assessment Report records that the offender was able to articulate the potential impact of the offence on the victim of the detention offence but was unable to identify any potential long term effects. The psychologist records the offender being sincerely remorseful and that he wants help with his mental health, flashbacks and drug use. The psychologist also records that the offender has requested to attend the compulsory drug treatment program.

The future and risk of re-offending

1. The offender in his letter of apology expresses remorse for his offending and records his declining mental health. The offender was assessed in the Sentencing Assessment Report as having a medium to low risk of reoffending.

Imposition of sentence

1. The offender entered pleas of guilty to both offences when the proceedings were in the Local Court. I will allow him a 25% discount of his sentence for the utilitarian value of his pleas. There is some evidence of remorse here. His early plea of guilty, his letter to the Court and his statements to the officer in the Sentencing Assessment Report and the psychological reports. I find that the offender is remorseful but in relation to the detaining offence, he lacks insight into how traumatic that offence was for the female victim. Given his lack of a prior record and his strong family support together with his relative youth, I consider he has good prospects for rehabilitation. His prospects for rehabilitation will be assisted if he has a longer period on parole. He is a young adult offender and I note also his mental health condition and his illicit substance use issues which he will need assistance with when released into custody. I will make a finding of special circumstances when setting the non‑parole period.
2. The offender Mr Mackie was held in custody during the period 25 July 2019 and 8 November 2019 in relation to the detention offence prior to obtaining bail. That is a period of 106 days. Since his arrest on the supply drug offence on 11 March 2020, he was taken into custody. His sentence will be backdated to 26 November 2019 to take account of his pre-sentence custody.
3. I will utilise the aggregate sentencing provisions when sentencing this offender. If I had not done so, there would have been a degree of accumulation of the two sentences given the discreet and different criminality involved in them.
4. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. As I said when sentencing Mr Moran earlier today, in relation to the detention offence, detention offences like the one I am to sentence the offender for are always serious offences. People should be free to conduct their lives without the fear of being detained against their will through the use of force by groups of young men who demand something from them.
5. While there is some reduction in the need to fully reflect general deterrence in the sentence due to the offender's mental health issues, there is still a need to reflect in part that concept of sentencing. The supply of a commercial quantity of drug like cocaine is always a very serious offence. Prohibited drugs are causing great damage to our community, destroying families and lives. Those who engage in supply of such large quantities of prohibited drugs must expect to receive significant sentences to deter them and others who may be tempted to engage in such criminality.
6. There is an issue of parity in relation to the sentence I am to impose on the offender for the detention offence. Judge Jefferies sentenced the co-offender Joseph Shanahan on 20 December 2020 for the same offence after trial. His Honour, in terms of Shanahan's role in the offence, found that: Shanahan's involvement in the offence commenced when the victim was forced to enter the vehicle. His Honour also found that Shanahan's involvement in the offence was spontaneous, that he drove the car at the direction of the co-offenders. His Honour was not satisfied that Shanahan took part in any discussion with the victim concerning her uncle's money. Clearly on his Honour's finding, Shanahan had a lesser role in the offence than the offender Moran who I have sentenced earlier today for that offence.
7. Shanahan was 22 years old when sentenced and 20 at the time of the commission of the offence. His Honour considered Shanahan's criminal record was minor and sentenced him on the basis that he was a person of good character. His Honour considered that Shanahan had shown some contrition. Shanahan was found to have suffered an undiagnosed bipolar mood disorder. His Honour took that into account, on the issue of the offender's moral culpability, and considered that issues of general and personal deterrence were moderated by Shanahan's mental health.
8. His Honour allowed Shanahan a 15% discount for future assistance. His Honour imposed a sentence of 22 months and permitted Shanahan the leniency of serving the sentence in the community.
9. In my opinion, this offender's role in the offence was greater than that of Shanahan. The subjective cases are to some degree similar, although this offender pleaded guilty but provided no assistance to authorities. The sentence I impose on this offender should be greater than that imposed on Shanahan but not to a significant extent. I consider this offender's role in the detention offence to be less than the co-offender Moran's and he has a slightly stronger subjective case than the co-offender Moran. The sentence I impose on this offender for this offence will be less than that which I imposed on Moran.
10. The total aggregate sentence will be more than three years so there is no issue of it being served by way of an Intensive Corrections Order.
11. The maximum penalties and in relation to the supply drug offence, the standard non-parole period, have been taken into account as legislative guideposts. I have departed from the standard non-parole period due to my assessment of the objective seriousness of the supply drug offence and my finding of special circumstances.
12. The offender Mr Mackie is convicted of the two offences to which he has pleaded guilty. I will firstly record the indicative sentences and in relation to the supply of prohibited drug offence, an indicative non-parole period. 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.
13. The sentences Mr Mackie you will hear me first announce are what are called indicative sentences. You will then hear me announce what is called an aggregate sentence which is a sentence of the non-parole period that you 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.
14. There is an indicative sentence for the detention offence of two years and four months imprisonment. There is an indicative sentence for the supply commercial quantity of cocaine offence of three years imprisonment with an indicative non-parole period of two years. I impose an aggregate sentence of four and a half years imprisonment with a non-parole period of two years and nine months. The sentence commences on 26 November 2019 and expires on 25 May 2024. The non-parole period expires on 25 August 2022. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 25 August 2022. Whether you are in fact released to parole that day is a matter for the State Parole authority which will no doubt take account of your behaviour in prison in determining whether you are released in or on another date.
15. I make an order pursuant to s 18B of the Drug Court Act referring the offender to the Drug Court to determine whether he should be subject to the Compulsory Drug Treatment Order. The drugs are to be destroyed if they have not already. I note the back-up offence on the s 166 certificate is withdrawn and dismissed.

Orders 1. The offender is convicted of the offences to which he pleaded guilty 2. Impose an aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years and 9 months. The sentence commences on 26 November 2019 and expires on 25 May 2024. The non-parole period expires on 25 August 2022. 3. Pursuant to s 18B of the Drug Court Act the offender is referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Amendments 07 April 2021 - Amendments to correct errors in coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2021