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District Court 24 June 2022

R v McKenzie

[2022] NSWDC 552

Drugs
CRIME DRUG OFFENCES ONGOING SUPPLY

Citation: R v McKenzie [2022] NSWDC 552
Court: District Court of New South Wales
Date: 24 June 2022
Judge(s): Buscombe DCJ

Background

The offender was a 53-year-old man identified by a police strike force as a heroin supplier operating in and around Mount Druitt. He directed and coordinated supply activities using associates and family members, operating from residential bases in Northmead and Shalvey. Police monitored three mobile telephone services he used to conduct his business between February and June 2021.

The offender pleaded guilty to three charges of ongoing supply of heroin under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), each carrying a maximum penalty of 20 years imprisonment. Each charge covered a distinct 30-day period. He admitted to police that he supplied heroin to fund his own addiction and described himself as a frequent heroin user on the methadone program.

At his arrest on 23 June 2021, police found 23 grams of heroin and $2,000 cash at his premises. Additional offences, including a further period of ongoing supply and a proceeds of crime matter, were taken into account on Form 1 when sentencing on two of the principal charges.

Legal Issues

  • What was the appropriate objective seriousness of the three ongoing supply offences, having regard to quantity, repetition, planning, and the offender's status as a user-dealer?
  • Did the offender's drug addiction mitigate the sentence, given his background and the principles in R v Henry (1999) 45 NSWLR 346?
  • What weight should be given to the offender's plea of guilty, remorse, and prospects of rehabilitation?
  • Did special circumstances exist justifying a longer-than-usual parole period relative to the non-parole period?
  • What aggregate sentence was appropriate across the three principal offences?

Decision

Objective seriousness: The court assessed each of the three principal offences as slightly below the notional midrange. The amounts supplied were relatively modest, described as approximately one to three times the indictable quantity across the three periods (at [12]). The court noted some planning, given the use of three unregistered mobile phones and a regular clientele base, but found the supplies lacked real sophistication (at [13]). The offender was characterised as a user-dealer, meaning his criminality was less than that of someone engaged in drug supply purely for profit (at [13]). The second charge, involving 16 separate supplies, was assessed as slightly more serious than the other two (at [14]). The Form 1 offences had a meaningful impact on the sentences for the charges to which they attached (at [16]).

Addiction as mitigation: The court acknowledged the offender's extensive and lifelong heroin addiction, which commenced at age 16, and his difficult childhood including social disadvantage and early exposure to drug culture (at [25], [34]). However, applying the principles in R v Henry, the court found that the mitigating effect of addiction was limited. The offender had been given multiple opportunities to address his dependency over his lifetime and had not taken adequate advantage of them. At his age, the court did not consider that funding his addiction significantly reduced the sentence (at [35]).

Plea, remorse, and rehabilitation: A 25 per cent utilitarian discount was applied for the early guilty plea entered in the Local Court (at [36]). The court found the offender's remorse to be primarily self-focused rather than genuine concern for the community, and noted limited insight into the harm caused by supplying heroin (at [31]-[32], [36]). His prospects of rehabilitation were assessed as no better than guarded, given his age, criminal history, prior failed rehabilitation attempts, and a medium to high risk of reoffending (at [37]).

Special circumstances and aggregate sentence: The court found special circumstances existed, warranting a departure from the standard ratio between the non-parole period and the total sentence. The factors underpinning this finding were the offender's need for considerable community support to address his addiction upon release, the harsher conditions of custody during the COVID-19 pandemic, and possible undiagnosed mental health issues (at [38]). An aggregate sentence of four years and ten months imprisonment was imposed, with a non-parole period of three years, commencing 23 June 2021 (at [42]).

Orders Made

  • Aggregate sentence of four years and ten months imprisonment imposed, with a non-parole period of three years.
  • Sentence commences 23 June 2021 and expires 22 April 2026; non-parole period expires 22 June 2024.
  • The offender is referred to the Drug Court under s 18B of the Drug Court Act 1998 (NSW) for determination of suitability for a compulsory drug treatment order.
  • Consent forfeiture order made in respect of $2,000 cash seized at the time of arrest.

Key Takeaways

  • For ongoing supply offences under s 25A(1) of the Drug Misuse and Trafficking Act, objective seriousness is assessed by reference to repetition, system, and organisation, not merely the quantities of individual supplies (at [11]). The amounts supplied nonetheless remain a relevant factor (at [12]).

  • A finding that an offender is a user-dealer, supplying drugs primarily to fund personal addiction rather than for profit, reduces the level of objective criminality compared with commercial suppliers, though it does not eliminate it (at [13]).

  • Under the principles in R v Henry, drug addiction may reduce a sentence where it arose from early social disadvantage and the offender had few rehabilitation opportunities. However, the mitigating effect diminishes where the offender has had multiple opportunities to seek treatment and has not pursued them (at [34]-[35]).

  • Special circumstances can be established by a combination of the offender's rehabilitative needs, harsh custody conditions during the COVID-19 pandemic, and potential mental health vulnerability, even where prospects of rehabilitation are only guarded (at [38]).

  • Committing drug supply offences while subject to a community correction order constitutes a statutory aggravating factor under s 21A of the Crime (Sentencing Procedure) Act, and the court treated it as such here (at [18]).

Legislation and Cases Referenced

Legislation
- Drug Court Act 1998 (NSW) , s 18B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases
- R v Henry (1999) 45 NSWLR 346