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…
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- AGLC
- Macallister (a pseudonym) v The Queen [2020] NSWCCA 306
- Case
- [2020] NSWCCA 306
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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