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District Court 2 September 2011

R v McKENZIE

[2011] NSWDC 168

Drugs
CRIMINAL LAW SENTENCE AIDING AND ABETTING BORDER CONTROLLED DRUG AMPHETAMINE MARKETABLE QUANTITY

Citation: R v McKenzie [2011] NSWDC 168
Court: District Court of New South Wales
Date: 2 September 2011
Judge: Berman SC DCJ

Background

The offender, a 48-year-old woman with no prior convictions, pleaded guilty at an early stage to aiding and abetting the importation of a border controlled drug, specifically methamphetamine, in a marketable quantity. Packages containing drugs were sent from the United States and delivered to her Redfern address. One consignment, concealed within a relaxation fountain kit, contained 63.3 grams of pure crystal methamphetamine.

A factual dispute arose over the extent of the offender's involvement. The Crown contended she was the purchaser of the drugs. The offender maintained she merely allowed her address to be used by another person, the actual purchaser, in exchange for receiving free drugs. She acknowledged checking on the consignment's whereabouts using a tracking number, and admitted her fingerprint appeared on a deposit slip linked to a cash deposit of $8,000 into the sender's bank account.

The court also noted the offender had used her elderly uncle's name, a man suffering from advanced Alzheimer's disease whose affairs were managed by the Public Guardian, as the consignee on the package. This was treated as an aggravating feature of the offence.

  • What factual basis should govern the sentence, given the dispute between the Crown's version of events and the offender's account of her role?
  • What weight should be given to the offender's personal circumstances, including a long-standing drug addiction linked to post-traumatic stress disorder?
  • What effect should a mid-proceedings drug relapse have on the sentence, particularly following an adjournment under section 11 of the Crimes (Sentencing Procedure) Act?
  • Whether a fully suspended sentence, rather than full-time custody, was appropriate in the circumstances.

Decision

His Honour resolved the factual dispute in the offender's favour, sentencing her on the basis that she facilitated the importation by allowing her address to be used, rather than as the purchaser. The court noted that the offender had been charged as an aider and abettor rather than a principal, and that the statement of facts was not inconsistent with her sworn evidence. The court also acknowledged this was not the first such package, meaning the offender received no benefit from any finding that the conduct was isolated.

On the question of personal circumstances, Berman SC DCJ accepted that the offender's drug addiction was causally connected to severe post-traumatic stress disorder arising from her experience as a survivor of the 1989 sinking of the Marchioness on the River Thames, in which 51 people died. The court drew on the principles in R v Henry concerning personal choice and addiction, finding that the offender's capacity to respond appropriately to life's stressors had been materially diminished by that traumatic event. Her subsequent self-medication, the court found, led directly to the addiction and ultimately to the offence.

The sentencing was complicated by a drug relapse during an adjournment under section 11 of the Crimes (Sentencing Procedure) Act. The court had granted that adjournment on the basis of promising rehabilitation signs and had explicitly warned the offender that further drug use would increase the likelihood of full-time custody. Urinalysis conducted in late June had detected amphetamine-type substances and benzodiazepines. The court described the relapse as disappointing and noted it raised serious questions about rehabilitation prospects and the need for personal deterrence.

Despite the relapse, updated reports from the Probation and Parole Service and supporters remained positive about the offender's rehabilitation potential. The court concluded that the combined weight of the early guilty plea, the offender's character, her genuine personal history, and the causal link between trauma and offending justified departing from what would ordinarily have been a full-time custodial sentence. A two-year term of imprisonment was imposed but the offender was released immediately on a recognisance release order subject to strict conditions.

Orders Made

  • The offender was sentenced to two years' imprisonment, commencing 1 September 2011.
  • A recognisance release order was made, directing the offender's immediate release upon entering a recognisance of $1,000.
  • Conditions of the recognisance included:
  • Good behaviour throughout the period
  • Supervision by the Probation and Parole Service, with compliance with all reasonable directions
  • Complete abstinence from illegal drugs
  • Monthly urinalysis at the offender's own expense, with results provided to the Probation and Parole Service, plus further random testing as directed
  • Any breach to be reported to the sentencing judge immediately

Key Takeaways

  • The District Court resolved a factual dispute about the degree of involvement in a drug importation offence by reference to the charge laid and the statement of facts, accepting the offender's lesser account where it was not contradicted by Crown material.
  • A causal connection between severe PTSD, arising from a documented traumatic event, and a subsequent drug addiction can bear meaningfully on the weight given to personal deterrence and moral culpability at sentencing, drawing on the principles in R v Henry regarding diminished choice.
  • Under section 11 of the Crimes (Sentencing Procedure) Act, an adjournment for rehabilitation purposes does not insulate an offender from full custodial consequences if conditions are breached; the court treated the mid-proceedings relapse as a significant negative factor, though not ultimately determinative.
  • Notwithstanding a drug relapse during a section 11 adjournment, a fully suspended sentence remained available where the overall weight of mitigating factors, including an early plea, good character, and a genuine traumatic background, was sufficiently compelling.
  • Using a cognitively impaired relative's identity as a cover for drug importation was treated as an aggravating feature of the offence, reflecting adversely on the offender's conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), section 11
- Crimes Act (Cth) (border controlled drug provisions)

Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (principles concerning personal choice, drug addiction and sentencing)