McKay v The Queen [2000] FCA 155 (10 February 2000)

Last Updated: 23 February 2000

FEDERAL COURT OF AUSTRALIA

McKay v The Queen [2000] FCA 155

CRIMINAL LAW - sentencing - taking into account evidence of offences other than those of which convicted - course of dealing - parity - whether manifestly excessive - possession of heroin for purpose of supply

Drugs of Dependence Act (1989) s 164(3)(b), s 164(3)(d)

R v Prokopiec (1982) 7 A Crim R 116 - Appr

R v Harris [1961] VR 235 - Appr -

R v James (1993) 113 FLR 247 - Appr

R v Pilley (1991) 56 ACR 202 - Appr

R v Watson, (Unreported, Supreme Court of the ACT, 1 July 1999) 55 - Appr

Lowe v R [1984] HCA 46; (1984) 154 CLR 606 - Appl

House v The King [1936] HCA 40; (1936) 55 CLR 499 - Appr

Loundes v R [1999] HCA 29; (1999) 163 ALR 483 - Appl

R v Blaskovic [1999] FCA 1306 - Refd

GARRY KENNETH McKAY v THE QUEEN

A50 OF 1999

SPENDER, HIGGINS & MATHEWS JJ

10 FEBRUARY 2000

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A50 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	GARRY KENNETH McKAY Appellant
AND:	THE QUEEN Respondent
JUDGES	SPENDER, HIGGINS & MATHEWS JJ
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 50 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:	GARRY KENNETH McKAY Appellant
AND:	THE QUEEN Respondent

JUDGES	SPENDER, HIGGINS & MATHEWS JJ
DATE:	10 FEBRUARY 2000
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J:

1 On 9 March Garry Kenneth McKay, together with a co-accused, one Darren John West, was arraigned on four counts in the Supreme Court. The first count alleged that on 25 March 1998 at Canberra, the two accused possessed a prohibited substance, namely heroin, for the purpose of sale to another person or persons. The second count was an alternative to the first, alleging simple possession of the heroin the subject of the first charge. The third count alleged that on 25 March 1998 at Canberra, they were in possession of a trafficable quantity of a prohibited substance, namely heroin, again for the purpose of sale. The fourth count alleged, in the alternative to count three, simple possession of the heroin in count three. The first and second counts related to 1719 milligrams of heroin located by police in a motor vehicle; the third and fourth counts related to 7030 milligrams of heroin located by police in a domestic residence. A trafficable quantity is two grams.

2 Each of McKay and West pleaded not guilty to the two counts alleging that they possessed heroin for the purpose of sale, but guilty to the alternative charges of possessing heroin. The central question at trial was, therefore, whether the two quantities of heroin to which the charges related were possessed for the purpose of sale.

3 On 19 March 1999 the jury returned verdicts of guilty against each of the accused for possessing heroin for the purpose of sale on 25 March 1998 and for possessing a trafficable quantity of heroin for sale on 25 March 1998. Section 164(3)(d) of the Drugs of Dependence Act 1989 ("the Act") provides that the maximum penalty for a person who possesses less than a trafficable quantity of a prohibited substance for the purpose of sale or supply to any person is a fine of $10,000 or imprisonment for five years or both. Section 164(3)(b) of the Drugs of Dependence Act provides that the maximum penalty for a person who possesses a trafficable quantity of a prohibited substance for the purpose of sale or supply to any person is a $100,000 fine or imprisonment for 25 years or both.

4 On 25 June 1999 Mr McKay was sentenced to a total of seven years imprisonment, backdated to 25 March 1998 to take into account the time he had spent in custody. A non-parole period was set to expire on 25 March 2001, which effectively provides a three year non-parole period from 25 March 1998. The effect of that sentence was that Mr McKay was ordered to serve a minimum of one year and nine months in custody from the date of sentencing.

5 Mr West, the co-accused of Mr McKay, was sentenced to a total of five years imprisonment, backdated to 25 April 1998 to take into account the time that he had spent in custody. A non-parole period was set to expire on 25 April 2000, effectively a two year non-parole period from 25 April 1998. If released at the earliest parole date, Mr West will have served ten months imprisonment from the date of his sentence.

6 Mr McKay, the appellant, complains that the learned sentencing judge took into account evidence of dealing in heroin for some time prior to the dates of the offences for which he was convicted. He submits that the jury verdict did not necessarily involve acceptance of that evidence, that the Crown did not present its case on that basis, and that offences of which an offender has not been convicted should not be taken into account in sentencing, but were in this case. In addition to that ground of complaint, Mr McKay complains of disparity between his sentence and that of Mr West. He further alleges that his sentence, viewed as a whole, was manifestly excessive.

7 Concerning the first complaint, that the trial judge took into account offences other than those of which Mr McKay had been convicted, the Crown prosecutor had put the Crown case to the jury by saying that the two accused:

"have to establish that every ounce, gram and milligram of the heroin was for their own use. That is if you are satisfied that some of it was for their own use, that some [of it], no matter how small, was for the purposes of supply, then your duty is to convict. If you are satisfied that it [was] all for their own use, your duty is to acquit".

8 The trial judge directed the jury in similar terms. It is submitted on Mr McKay's behalf that the most that could therefore be inferred from the jury's verdicts was that they were satisfied beyond reasonable doubt that some of the heroin, both in the motor vehicle and in the house, was for the purpose of sale to another person or persons, and therefore that the learned sentencing judge's approach, in sentencing on another basis, was erroneous.

9 What the trial judge in fact said in the course of sentencing was:

"...these offences were committed as incidents of a course of dealing and, ... in relation [to] that course of dealing, Mr McKay took the dominant role and was essentially the leader".

10 Regarding the relationship between sentencing and a jury's verdict generally, it was said in R v Prokopiec (1982) 7 A Crim R 116 at 119:

"A judge, before passing sentence at the conclusion of a jury trial, must determine a factual basis for the punishment he imposes. In

Rowbottom (unreported), Court of Criminal Appeal, Tasmania, 24^th March, 1960), Burbury C.J. stated the principles applicable as follows:

`...He must of course accept all the findings of fact necessarily involved in the jury's verdict. And he is not entitled to proceed upon any view of the facts necessarily negatived by the jury's verdict. But questions of premeditation, planning, motive, malignity, joinder with others, as well as a great variety of mitigating circumstances which a judge may have to consider in order to determine condign punishment may be left entirely at large by the jury's verdict.'"

11 In R v Harris [1961] VR 236 at 236-7 it was also emphasised that a judge cannot act on a view of the facts that conflicts with the jury's verdict, but that:

"The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender".

12 The Crown case here was put to the jury explicitly on the basis that the offences charged were committed in the context of a commercial operation selling heroin. Evidence to support that contention was adduced to the jury without objection. It cannot be said that the Crown case was put to the jury on any basis other than that the appellant had been the principal in a commercial enterprise selling heroin over a number of years.

13 In addition to facts going to the immediate offences in issue at the trial, the Crown did also canvass facts indicating the existence of an ongoing business. There was a list of creditors updated in relation to day-to-day activities. A cash float was kept in the motor vehicle in which some of the heroin was found. There was the purchasing of large quantities of heroin at Pheasants Nest instigated by Mr McKay, and there was the possession of a large number of unused syringes and balloons as indicia of ongoing supply. In my opinion, on the evidence presented, it was open to the learned sentencing judge to find beyond a reasonable doubt "that neither offence was an isolated offence, and that there [had] been a course of dealing for some period of time".

14 The bald elements of the offences of which the appellants were convicted are consistent with a wide range of circumstances, which would show differing levels of criminality and culpability. Courts have recognised that the seriousness of drug offences involving supply can be gauged by the circumstances surrounding the possession or supply of the drugs. Surrounding circumstances, thus, may disclose that the offence was a dealing between end users, a sharing between fellow users, or even a "one-off" transaction.

15 On the other hand, the surrounding circumstances might indicate that the offences involved were part of a sophisticated, large-scale and ongoing commercial operation. In R v James (1993) 113 FLR 247, Miles CJ said at 250:

"It is now established by the Full Court of the Federal Court of Australia that accepted facts not constituting part of the crime for which an accused is convicted can properly be used to evaluate the seriousness of the crime for which the person is convicted, and that such facts should not be regarded as potentially countervailing subjective considerations which might tend towards leniency on the basis, for instance, that the crime for which the person is convicted was an isolated lapse".

16 Also in R v Pilley (1991) 56 ACR 202, the Court noted at 208 that a custodial sentence is usually the starting point where possession for the purpose of supply is proven, and that "the position is worse when there has been a profitable, commercial exploitation...".

17 In R v Watson, an unreported judgment of 1 July 1999, ACT Supreme Court 55, the Court said at paragraph 23:

"Although the indictment contains only four counts and the offender is convicted of only four offences, the facts put before the Court show a continuing pattern of conduct in which the offender was engaged in the supply of heroin in Canberra over a three month period in late 1998. It must be emphasised that the offender is to be sentenced for the offences on which she stands convicted. Nevertheless, the Court has to take into account the whole of the surrounding circumstances accepted for the purpose of the sentencing process, notwithstanding that they disclose the commission of further crimes. That approach is necessary in order to evaluate the criminality of the offences on which she is convicted. It is necessary to say only that the Federal Court has approved that approach in the case of R v Omar (1991) 55 A Crim R 373...".

18 In this case, the learned sentencing judge evaluated the seriousness of the offences which were the subject of the guilty verdicts by the jury by taking into account, amongst other things that the offences were committed as incidents in a course of dealing. This is not only a case where the appellant cannot be given leniency, which might be extended if this were a one-off offence, but also in my opinion a case where the offence is to be seen as more serious because it was part of the appellant's drug dealing operation.

19 The learned sentencing judge, accurately, observed that:

"...each prisoner must only be sentenced in relation to the particular offences which the jury has found that he committed. However, it would be inappropriate to treat those offences as isolated islands of criminality in a sea of otherwise blameless behaviour".

20 In the light of those observations, it seems to me that the complaints that the trial judge took into account offences other than those of which Mr McKay had been convicted and that the sentence reflected punishment for those other offences, cannot be made out, as the remarks of the sentencing judge just quoted make plain. The prior conduct of Mr McKay lends colour and gives flavour to the actual criminality involved in the offences of which the jury convicted him. In my opinion, the first ground of complaint is not made out.

21 As to the ground of complaint alleging disparity between the sentences imposed on Mr McKay and Mr West, in Lowe v R [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ, Mason, Wilson and Dawson JJ indicated that mere disparity between the sentences imposed on co-offenders is not of itself a ground for intervention by an appellate court. The difference between the sentences must be manifestly excessive and the Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the part of the accused on whom the heavier sentence is imposed, or on the ground that the disparity gives the appearance that justice has not been done.

22 In this particular case the two co-offenders were sentenced by the same judge, who made distinctions between them to explain the differences in the sentences which he imposed on each. First, the learned sentencing judge took the view that the appellant was the principal in the supply network operated by Mr McKay and Mr West. He said:

"Mr McKay took the dominant role and was essentially the leader",

23 and:

"Mr West...occupied a subordinate role,...at least predominantly for the purpose of supporting his addiction".

24 In my opinion, it was open to his Honour, on the evidence before him, to make that finding. There was evidence that it was Mr McKay who arranged the purchase of drugs, and that it was he who divided the drugs up. The operation supplying heroin used his mobile phone. Further, there was some evidence that Mr West's Social Security payments were collected by Mr McKay, or paid to him, as part of a deal where heroin as well as accommodation was supplied to Mr West. That circumstance, in my view, is a telling piece of evidence supporting the conclusion that Mr West's role was subordinate to that of Mr McKay.

25 There are other differences which further support the disparate sentences that were imposed. First, Mr McKay is nine years older than Mr West. Mr McKay, unlike Mr West, had previously attempted rehabilitation with limited success. Mr McKay had convictions for possession of heroin and supply of cannabis, unlike Mr West. Importantly in my view, at the time of the offences Mr McKay was bound by a Magistrate's Court recognizance, entered into in May 1997, to be of good behaviour for 18 months from that date. That circumstance is also a telling difference between the criminality revealed by Mr McKay's conduct and that of Mr West.

26 It is true that there were a number of factors similar to both Mr McKay and Mr West. Each of them had previously used drugs, had support from defacto relationships, had children, and had been trouble free prisoners while on remand. Despite this, the circumstances to which I have referred above provide proper grounds for the disparity between the sentence imposed on the appellant and that imposed on Mr West, which disparity in my opinion provides no ground for appellate intervention.

27 The third ground, dealing with the totality of the sentence and the complaint that the sentence, viewed as a whole, was manifestly excessive can be disposed of shortly. The function of an appellate court on an appeal has to be borne firmly in mind - House v The King [1936] HCA 40; (1936) 55 CLR 499 sets out the well known principles, recently restated by Loundes v R [1999] HCA 29; (1999) 163 ALR 483 at 488:

"...a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice".

28 I refer to that observation, because there may be room for thinking that the head sentence of seven years is towards the top of the permissible sentencing range, having regard to the schedule of sentences that have been imposed for supplying dangerous drugs which was handed up to the court, many of which are referred to in the judgment of Dowsett J in R v Blaskovic [1999] FCA 1306. On the other hand, possession of heroin of a trafficable quantity for supply is a very serious offence, as reflected by the maximum penalty of 25 years imprisonment prescribed for that offence.

29 When one has regard to the extent of the criminality exhibited here, including the possession of a very significant quantity of heroin as part of a commercial enterprise of which Mr McKay was the leader, the need for general deterrence, and the need for specific deterrence given the appellant's personal circumstances, in my opinion it cannot be said that the present sentence calls for appellant intervention. That conclusion, in my opinion, is reinforced by a consideration of the non-parole period that the learned sentencing judge imposed.

30 In my opinion, the learned sentencing judge did not fall into error when imposing the sentence he did. It has not been demonstrated that the sentence which was imposed was manifestly excessive. I would dismiss the appeal.

HIGGINS J:

31 I agree, and I agree with the reasons pronounced by the learned presiding judge. In relation to the third ground, that is the challenge to the totality of the sentence imposed on Mr McKay, I would emphasise that, by reason of the way in which the trial was conducted, there was no plea of guilty to the manifestly aggravating circumstance of a purpose of supply in relation to each of the two counts upon which he was convicted.

32 There was no remorse in respect of that purpose and inevitably no challenge to any adverse inferences that might arise from the Crown evidence. The only circumstance giving rise to any suggestion of leniency, apart from family circumstances, was Mr McKay's status as an addict, thus raising the need for rehabilitation to be given a role in the sentencing process. And that, in my view, was reflected in the non-parole period. I also would dismiss the appeal.

MATHEWS J:

33 I also would dismiss the appeal for the reasons given by the learned presiding judge.

SPENDER J:

34 The order of the court is that the appeal is dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender, Higgins and Mathews JJ.

Associate:

Dated: 22 February 2000

Counsel for the Appellant:	Mr Craig Everson
Solicitor for the Appellant:	McGuiness Eley
Counsel for the Respondent:	The Director of Public Prosecutions, Mr Richard Refshauge
Solicitor for the Respondent:	Mr Adrian Robertson
Date of Hearing:	10 February 2000
Date of Judgment:	10 February 2000