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District Court 29 January 2021

R v Mackie

[2021] NSWDC 94

Assault & violenceDrugs
CRIME VIOLENT OFFENCES DETAIN FOR ADVANTAGE DRUG OFFENCES SUPPLY PROHIBITED DRUG POSSESS PROHIBITED DRUG

Citation: R v Mackie [2021] NSWDC 94
Court: District Court of New South Wales
Date: 29 January 2021
Judge(s): Buscombe DCJ

Background

The offender was sentenced following guilty pleas to two discrete offences committed approximately two years apart. The first was a joint criminal enterprise involving the unlawful detention of a young woman in Bathurst in April 2018. The offender and co-offenders travelled from Springwood to Bathurst and forced the victim into a vehicle, interrogating her about her uncle's money while driving her around for approximately 20 to 25 minutes before releasing her.

The second offence arose from an unrelated police surveillance operation in March 2020. Officers observed the offender pull his vehicle behind a target vehicle, approach its passenger window carrying a white shopping bag, and drive away. A subsequent search of his vehicle uncovered 499.8 grams of cocaine at 42.5% purity, approximately twice the commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 (NSW).

The offender also acknowledged possession of 7.87 grams of Stanozolol, which was dealt with on a Form 1 (a procedure allowing a court to take additional offences into account without recording a separate conviction, typically resulting in a modest uplift to the sentence rather than a standalone term).

Legal Issues

  • What was the appropriate objective seriousness of each offence, having regard to the offender's specific role in each?
  • How should the sentencing principles applicable to young adult offenders affect the weighting of rehabilitation against deterrence?
  • What mitigating weight should be given to the offender's PTSD, childhood sexual abuse, and substance use disorder?
  • How should the principle of sentencing parity operate in relation to the co-offender Shanahan, who had been sentenced separately for the detention offence?
  • Were special circumstances established justifying a departure from the standard non-parole period for the drug supply offence?

Decision

Objective Seriousness: Detention Offence

The court could not find beyond reasonable doubt, on the agreed facts, that the offender knew before the victim was forced towards the vehicle that she was to be detained (at [28]). Nonetheless, once in the vehicle the offender was aggressive and hostile, making statements that terrified the victim (at [28]). Buscombe DCJ assessed the detention offence as below the mid-range of objective seriousness but not at the bottom of the range (at [28]).

Objective Seriousness: Drug Supply Offence

The quantity of cocaine, at 499.8 grams and approximately twice the commercial quantity, and its purity of 42.5% were relevant but not determinative (at [29]). The offender's role was characterised as that of a courier, placing him at the bottom of the supply hierarchy, though couriers were noted to be an important element in enabling commercial supply (at [30]). The court assessed the supply offence as also below the mid-range of objective seriousness but not at the bottom of the range (at [31]).

Subjective Case and Mitigating Factors

The offender was 20 years old at the time of the detention offence and 22 at the time of the supply offence, engaging the principles for young adult offenders that favour rehabilitation and treatment over general deterrence and retribution (at [32]). A psychologist diagnosed the offender with PTSD in the severe symptomatic range, linked to childhood sexual abuse, and found the offender's substance use disorder was connected to that trauma (at [42]-[43]). The court accepted that the offender's impaired judgment from illicit substances warranted some mitigation of sentence, and that his mental health condition lessened, though did not remove, the weight to be given to general deterrence (at [44]-[45]). The offender's commission of the supply offence while on bail for the detention offence was an aggravating factor (at [33]).

Parity with Co-offender Shanahan

Co-offender Shanahan had been sentenced to 22 months, served in the community, after a finding that his involvement began only once the victim was forced into the vehicle and was essentially spontaneous (at [56]-[58]). The court found the offender's role in the detention offence greater than Shanahan's but less than co-offender Moran's, and determined a sentence greater than Shanahan's but below Moran's was warranted (at [59]). A 25% discount was applied for the utilitarian value of early guilty pleas entered in the Local Court (at [51]).

Special Circumstances and Aggregate Sentence

The court found special circumstances existed, justifying a longer parole period to assist the offender's rehabilitation and allow treatment for his mental health and substance use difficulties (at [51]). An aggregate sentence of four and a half years imprisonment was imposed, with a non-parole period of two years and nine months, commencing 26 November 2019 (at [64]). The offender was also referred to the Drug Court to determine eligibility for a Compulsory Drug Treatment Order (at [65]).

Orders Made

  • The offender was convicted of the two offences to which he pleaded guilty.
  • An aggregate sentence of 4 years and 6 months imprisonment was imposed, with a non-parole period of 2 years and 9 months.
  • The sentence commenced on 26 November 2019 and expires on 25 May 2024, with the non-parole period expiring on 25 August 2022.
  • The offender was referred to the Drug Court pursuant to s 18B of the Drug Court Act 1998 (NSW) to determine whether he should be subject to a Compulsory Drug Treatment Order.
  • The back-up offence on the s 166 certificate was withdrawn and dismissed.
  • The drugs were ordered to be destroyed.

Key Takeaways

  • Where an offender in a joint criminal enterprise cannot be proven beyond reasonable doubt to have known of the planned detention before it commenced, that limitation on knowledge remains relevant to the assessment of individual moral culpability, even though the offender remains criminally responsible for the full offence (at [28]).

  • A courier's role in a drug supply operation places the offender at the bottom of the supply hierarchy for sentencing purposes, though courts have consistently noted that couriers are a necessary element enabling commercial-scale supply to occur (at [30]).

  • Diagnosed PTSD linked to childhood sexual abuse, and a substance use disorder connected to that trauma, can support both mitigation of sentence and a reduced (though not eliminated) emphasis on general deterrence, where the evidence establishes a nexus between the mental health condition, the substance use, and the offending (at [44]-[45]).

  • For young adult offenders, the District Court confirmed that principles drawing from Bullock v R [2016] NSWCCA 131 and BP v R [2010] NSWCCA 159 ordinarily require greater weight to be given to rehabilitation and treatment relative to general deterrence, denunciation, and retribution (at [32]).

  • Committing a further serious offence while on bail is an established aggravating factor, and a referral to the Drug Court under s 18B of the Drug Court Act 1998 (NSW) remains available as a sentencing tool where an offender's substance use disorder is a central issue (at [33], [65]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 86(2)(a)
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)
- Criminal Procedure Act 1986 (NSW) s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
- Drug Court Act 1998 (NSW) s 18B

Cases
- Bullock v R [2016] NSWCCA 131
- BP v R [2010] NSWCCA 159