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Macallister (a pseudonym) v The Queen

Macallister (a pseudonym) v The Queen

Case [2020] NSWCCA 306 25 November 2020

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Macallister (a pseudonym) v R [2020] NSWCCA 306
Hearing dates: 2 November 2020
Decision date: 25 November 2020
Before: Leeming JA at [1]
Bellew J at [2]
Wright J at [102]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The sentence imposed on the applicant in the District Court is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment for 7 years and 6 months commencing on 28 August 2016 and expiring on 27 February 2024.
(5)   Specify a non-parole period of 4 years and 7 months’ imprisonment commencing on 28 August 2016 and expiring on 27 March 2021.
(6) Pursuant to s16AC(2)(a) of the Crimes Act 1914 (Cth), state that the sentence is being reduced because the applicant has undertaken to co-operate with law enforcement agencies.
(7) Pursuant to s16AC(2)(b) of the Crimes Act 1914 (Cth), specify that but for the reduction made on account of the applicant’s undertaking to co-operate with law enforcement agencies, the sentence that would have been imposed would have been one of 12 years and 9 months’ imprisonment.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Where applicant had assisted the authorities by making an induced statement outlining the circumstances of the importation and his involvement in it – Statement far more detailed than the facts tendered on sentence – Where Crown tendered the applicant’s statement in the context of his assistance – Failure on the part of both the Crown and counsel then appearing for the offender to address the issue of the use to which the statement could be put by the sentencing judge – Where the sentencing judge made a series of findings based on the statement as to the applicant’s role and his level of criminality in comparison with his co-offenders – Where those findings were adverse to the applicant – Error established
CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Objectively serious offending involving the importation of sixteen times the commercial quantity of cocaine – Where applicant pleaded guilty and expressed genuine contrition – Where applicant co-operated with law enforcement and provided a high level of assistance extending to promised future assistance – Where applicant had fears for his personal safety arising out of his assistance to authorities – Where applicant’s criminality at a substantially higher level than either co-offender – Applicant re-sentenced
CRIMINAL LAW – Practice and procedure – Use which can be made on sentence of an induced statement which has been made by an offender for the primary purpose of assisting the authorities – Necessity for both the Crown and defence to be clear at the…

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.

Continue reading Macallister (a pseudonym) v The Queen

Details

AGLC: Macallister (a pseudonym) v The Queen [2020] NSWCCA 306
Case: [2020] NSWCCA 306
Decision Date: 25 November 2020

CaseChat Overview and Summary

The case before the court involved an individual, referred to as Macallister, who pleaded guilty to importing a commercial quantity of a border-controlled drug. The matter was heard in the court of appeal, which was tasked with assessing the appropriateness of the sentence given to Macallister and the use of an induced statement made by him in the sentencing process. The Crown argued that the statement, which was more detailed than the facts presented during sentencing, should be used to support their case. However, neither the Crown nor the defence addressed how the statement could be used by the sentencing judge, leading to a series of adverse findings regarding Macallister's role and level of criminality.

The primary legal issue before the court was whether the use of the induced statement by the sentencing judge was appropriate and whether the error established by this misstep necessitated a re-sentencing. The court examined the gravity of the offence, which involved a significant quantity of cocaine, and considered Macallister's cooperation with law enforcement and his genuine contrition. The court also noted the disparity in the level of criminality between Macallister and his co-offenders, as well as his fears for personal safety due to his assistance to authorities. The court found that the error in the use of the statement required the case to be re-sentenced, taking into account the full scope of the offender's assistance and the seriousness of the offence.

In re-sentencing Macallister, the court acknowledged the objectively serious nature of the offence, the sixteen-fold commercial quantity of cocaine involved, and the genuine remorse expressed by the applicant. The court highlighted the extensive cooperation provided by Macallister, including his promise of future assistance, and his concerns for personal safety arising from his assistance to authorities. Given these factors, the court re-sentenced Macallister, recognising the substantial difference in his level of criminality compared to his co-offenders. The court also emphasised the need for both the Crown and defence to clearly outline the intended use of induced statements at the time of tendering them, and the importance of assisting the sentencing judge in understanding the full context of such statements.

The court's final orders involved re-sentencing Macallister, taking into account all relevant factors, including his level of cooperation, the seriousness of the offence, and his expressed contrition. The court also underscored the necessity for clear communication between the Crown and defence regarding the use of induced statements in sentencing hearings, and the obligations of both parties to assist the sentencing judge in making an informed decision.

Orders