Cao v The Queen; McGregor-Macdonald v The Queen - [2020] NSWCCA 223

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223
Hearing dates: 26 August 2020
Decision date: 02 September 2020
Before: Hoeben CJ at CL at [1];
Davies J at [2];
Adamson J at [3]
Decision:
Proceedings 2019/510
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentence imposed in the District Court on 12 February 2020 and, in lieu thereof, impose an aggregate sentence of 3 years and 2 months’ imprisonment commencing on 20 January 2020 and expiring on 19 March 2023 with a non-parole period of 19 months’ imprisonment commencing on 20 January 2020 and expiring on 19 August 2021.
Proceedings 2019/470
(1)   Grant leave to appeal.
(2)   Dismiss the appeal.

Catchwords:
SENTENCING — Appeal against sentence — Where sentencing judge erroneously referred to incorrect offence at conclusion of remarks of sentence — Where the offence had otherwise been identified correctly — Whether applicants sentenced for a more serious offence than charged — Slip in expression during ex tempore reasons
SENTENCING — Appeal against sentence — Plea to reckless wounding in company — Whether sentencing judge erroneously had regard to injuries that might have exposed applicants to a more serious offence
SENTENCING — Appeal against sentence — Co-offenders — Parity — Substantially similar subjective circumstances — Where co-offenders received same indicative sentence for offence of reckless wounding in company — Where one co-offender had lesser role in commission of that offence — Whether similarity in sentence justifiable

Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 35
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 53A

Cases Cited:
Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38
Green vTheQueen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kingsley v R [2019] NSWCCA 19
McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties:
Proceedings 2019/510
Richard Minh Huy Cao (Applicant)
Regina
Proceedings 2019/470
Dylan McGregor-Macdonald (Applicant)
Regina
Representation:
Proceedings 2019/510
Counsel:
S Goodwin (Applicant)
M A Kumar (Crown)

Solicitors:
Greenfield Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

Proceedings 2019/470
Counsel:
T Kent (Applicant)
M Kumar (Crown)
Solicitors:
Mark Mulock & Co (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2019/510; 2019/470
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 February 2020

Before:

Buscombe DCJ

File Number(s):

2019/510; 2019/470

Judgment

HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.
DAVIES J: I agree with Adamson J.
ADAMSON J: The applications of Richard Cao and Dylan McGregor-Macdonald (the applicants) for leave to appeal against their sentences were heard together for convenience. Each applicant alleges that the sentencing judge erroneously sentenced him for the more serious offence of recklessly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCCA 223
Decision Date: 02 September 2020

CaseChat Overview and Summary

The applicants in this case, Cao and McGregor-Macdonald, were convicted of reckless wounding in company and were subsequently sentenced by a judge. They appealed against their sentences on the grounds that the sentencing judge had made errors in his remarks. Specifically, they argued that the judge had erroneously referred to an incorrect offence at the conclusion of his sentencing remarks, and that he had improperly taken into account the potential for more serious charges during his ex tempore reasons.

The primary legal issues before the court were whether the applicants had been sentenced for a more serious offence than they were charged with, and whether the sentencing judge had erred in considering injuries that might have exposed the applicants to a more serious offence. The applicants argued that the errors in the sentencing remarks had prejudiced their cases and led to a harsher sentence than they would have otherwise received.

The court found that while the sentencing judge had made an error in referring to an incorrect offence, this had not resulted in the applicants being sentenced for a more serious offence than they were charged with. The court also found that the judge had not improperly taken into account the potential for more serious charges, as he had based his sentencing decision on the facts of the case and the specific offence of reckless wounding in company. The court concluded that the applicants had not been prejudiced by the errors in the sentencing remarks and that the sentences imposed were appropriate.

The final orders of the court were to dismiss the appeals against sentence brought by Cao and McGregor-Macdonald. The sentences imposed by the trial judge were upheld.

Orders