By Paul Gregoire and Ugur Nedim
Stuart McKinnon was arrested on 2 May 2018. The NSW resident was taken into police custody in relation to two instances of drug supply that occurred in March 2017. These involved his having organised the handover of drugs via a third party and receiving the accompanying payment himself.
McKinnon organised the sale of 10,000 MDMA tablets for $50,000 on 3 March 2017. This was done via emails sent out over an encrypted Blackberry device. And the drug purchaser was a person by the name of Crystal, who, unbeknownst to McKinnon, was an undercover police operative.
A Mr Giri was the person who handed Crystal the MDMA tablets. And later that day, the undercover cop met McKinnon and gave him the $50,000 payment. Crystal then negotiated a second sale for the same amount for 30 March. And on that day, Giri was stopped and arrested over the 10,000 pills.
Following McKinnon’s arrest a year later, NSW police officers located $6,250 in cash in his car. And a subsequent search of his residence found he was in illegal possession of four vials of Sparta branded testosterone, as well as a further $231,450 in cash.
The charges laid
At the earliest opportunity available to him, Mr McKinnon pleaded guilty to two counts of supplying a large commercial quantity of a prohibited drug, contrary to subsection 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The maximum penalty for supplying a large commercial quantity of a prohibited substance is life imprisonment and/or a fine of $550,000.
The offence also carries a standard non-parole period (SNPP) of 15 years gaol time. An SNPP is a reference point or guidepost for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
There were also two additional charges that were to be taken into account when sentencing. These related to the testosterone that McKinnon had in his possession, as well as the money. When secondary charges are dealt with in this manner, they’re referred to as Form 1 offences.
The first Form 1 offence was for the possession of a prohibited drug contrary to section 10 of the Drug Misuse and Trafficking Act. It carries a maximum penalty of 2 years prison time and/or a fine of $2,200.
The second additional offence was one count of dealing with the proceeds of crime, contrary to subsection 193C(1) of the Crimes Act 1900 (NSW). This crime carries a maximum penalty 5 years behind bars.
Prompting an appeal
NSW District Court Judge Sean Grant found that with the level of sophistication involved in the drug transactions, the offences fell into the mid-range of seriousness.
In relation to the Form 1 offences, he found the testosterone of lower range offending, while he wasn’t satisfied beyond a reasonable doubt that the located money was “personally derived” by McKinnon from the supply of drugs.
On 15 April last year, McKinnon was sentenced to an aggregate sentence of 11 years prison time, with a non-parole period of 7 years and 6 months. This was indicative of a sentence of 7 years for each of the supply convictions, with a non-parole period 4 years and 6 months applying to both.
However, on 15 May this year, the NSW Court of Criminal Appeal (NSWCCA) allowed a challenge against the aggregate sentence imposed. This appeal was based on the single ground that the sentencing judge had made an error when taking the Form 1 offences into account.
The Form 1 procedure
Form 1 offences are charges laid against an offender, of which they haven’t been convicted of, but, on the request of the accused, are taken into account when sentencing for a principal offence that the offender has been convicted of.
Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides the procedure for Form 1 offences. This involves additional charges filed by the prosecution that are to be considered by the judge when handing down a sentence for a principal offence.
These additional offences can be filed at any time and are listed on a Form 1. Both the offender and the Director of Public Prosecutions must sign the form. And the offender needs to admit guilt to these further offences and indicate their willingness for them to be dealt with in this manner.
Form 1 offences have significantly less importance compared to principal offences when sentencing.
The rationale for the procedure is it promotes rehabilitation as there is no conviction listed on an offender’s record, and they have a utilitarian value as the admission of guilt means law enforcement doesn’t have to use more resources in trying to prove the accused has committed the crimes.
A sentencing judge is not supposed to quantify Form 1 offences and come up with a distinct penalty for them, but rather the effect of these additional offences is that they extend the length of time handed down for a principal offence.
While Form 1 offences are given less prominence, it does not mean their effect has to be small, and the impact they have upon a sentence for a principal offence can be substantial.
However, these additional offences must not have the effect of extending a sentence to the extent that it exceeds the maximum penalty applicable for a principal offence.
Applying the correct procedure
NSWCCA Justice Anthony Payne explained in regard to McKinnon’s appeal that the prosecution agreed that the sentencing judge had made an error in not applying the effect of the Form 1 offences to just one of the principal offences.
This was apparent as each offence, which was “essentially the same”, had resulted in an equal amount of prison time being applied as punishment. And due to this, it was necessary for the court of appeal to consider the sentencing exercise afresh.
As “neither party challenged any of the findings of fact made by the sentencing judge”, Justice Payne explained, it was then “appropriate to proceed on the basis of those findings”.
This included applying a 25 percent discount to the sentence due to the utilitarian value of McKinnon’s early guilty pleas.
On 27 May this year, his Honour ordered that the original sentence be quashed, and a new aggregate sentence of 8 years gaol time, with a non-parole period of 5 years and 6 months, be applied.
This aggregate sentence incorporated a sentence of 5 years and 6 months for the first count of drug supply, as well as a sentence of 6 years and 6 months for the second drug supply offence. The sentence for the second count was longer due to the consideration of the Form 1 matters.
NSWCCA Justices Robert Beech-Jones and Natalie Adams agreed with the orders of Justice Payne.