Andrew Michael Macleod v The Queen

[2013] HCASL 193

ANDREW MICHAEL MACLEOD

v

THE QUEEN

[2013] HCASL 193
S105/2013

1. On 10 September 2012 the applicant was convicted following a trial in the District Court of New South Wales (Phegan ADCJ and jury) of making a collusive agreement with a member of the New South Wales Police Force for the purpose of improperly taking advantage of the member's position[1]. 

   [1]Police Act 1990 (NSW), s 200(2)(b).

2. On 14 November 2012 Phegan ADCJ sentenced the applicant to nine months' imprisonment expiring on 13 August 2013.  His Honour directed that the sentence be wholly suspended[2].  Phegan ADCJ held that the applicant "deserves to go to gaol and I have no reservations about that"[3].  In determining to make an order suspending the sentence his Honour took into account that imprisonment would cause "very significant hardship" to the immediate members of the applicant's family and to his employees[4].

   [2]Crimes (Sentencing Procedure) Act 1999 (NSW), s 12.

   [3]R v MacLeod [2013] NSWCCA 108 at [39].

   [4]R v MacLeod [2013] NSWCCA 108 at [39].

3. The Director of Public Prosecutions appealed against the inadequacy of the sentence to the Court of Criminal Appeal of New South Wales (Simpson, Harrison and Bellew JJ).  The Director contended, and the Court of Criminal Appeal accepted, that hardship to third parties did not justify the suspension of a sentence which the primary judge had recognised should be served in full-time custody[5].  In so concluding the Court of Criminal Appeal applied established principle[6].

   [5]R v MacLeod [2013] NSWCCA 108 at [55].

   [6]R v MacLeod [2013] NSWCCA 108 at [43].

4. The Director confined his challenge to the order for suspension.  Simpson J, giving the leading judgment, questioned that a sentence of nine months' imprisonment was adequate to meet the criminality involved in the offence[7].  In light of the Director's stance, the Court allowed the appeal and re‑sentenced the applicant to a term of nine months' imprisonment to date from the making of the order.  A non-parole period of six months and three weeks expiring on 3 December 2013 was specified[8].

   [7]R v MacLeod [2013] NSWCCA 108 at [62]-[63].

   [8]R v MacLeod [2013] NSWCCA 108 at [65].

5. The applicant applies for special leave to appeal contending that the Court of Criminal Appeal misapplied sentencing principle with respect to hardship to third parties and erred by not taking into account the period of the sentence that had been served prior to judgment being delivered.  Finally, he contends that the Court erred in failing to consider or to give reasons with respect to the residual discretion. 

6. The sentencing judge's finding respecting the hardship that would be imposed on third parties by a sentence of imprisonment did not take account of the statements of principle in R v Edwards[9].  There is no reason to doubt the Court of Criminal Appeal's conclusion that his Honour's findings did not warrant the suspension of the sentence.  It is not apparent that the applicant submitted to the Court of Criminal Appeal that the Court should take into account the time served under the suspended sentence or exercise its residual discretion to dismiss the appeal.  The applicant does not point to any factors which would favour the latter course.  The applicant's sentence is likely to have expired before the determination of an appeal, were special leave to be granted.  Moreover, were special leave to be granted there are insufficient prospects that the appeal would succeed. 

   [9](1996) 90 A Crim R 510.

7. The application is dismissed.

8. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

V.M. Bell
3 December 2013 S.J. Gageler