Mack v The The Queen - [2022] NSWCCA 114

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mack v R [2022] NSWCCA 114
Hearing dates: 20 April 2022
Date of orders: 08 June 2022
Decision date: 08 June 2022
Before: Simpson AJA at [1]
Harrison J at [1]
Fagan J at [1]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – supply prohibited drug – possess unauthorised prohibited firearm – possess more than three unregistered firearms – whether sentencing judge erred in sentencing the applicant twice in relation to the same offence – whether sentencing judge erred by failing to take into account the applicant’s mental health status – whether sentencing judge erred in assessing objective seriousness – whether sentence was manifestly excessive – error conceded – appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
Criminal Procedure Act 1986 (NSW), s 167
Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
Firearms Act 1996 (NSW), ss 7(1), 51D(2)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) A Crim R 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37
Mack v R; Mack v R [2009] NSWCCA 216
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

Category: Principal judgment
Parties: Wayne Raymond Mack (Applicant)
Crown (Respondent)
Representation:
Counsel:
H White (Applicant)
M Millward (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions
(Respondent)

File Number(s): 2018/112373
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW at Dubbo

Jurisdiction:

Criminal

Date of Decision:

25 September 2020

Before:

N Williams DCJ

File Number(s):

2018/112373

Judgment

THE COURT: Wayne Raymond Mack pleaded guilty in the Local Court and was committed for sentence in relation to the following four charges:

Charge

Sequence

Maximum penalty

Supply prohibited drug (7.654kg of cannabis)

s 25(1) of the Drugs Misuse and Trafficking Act 1985

Sequence 4

10 years imprisonment and/or a fine of 2,000 penalty units

No SNPP

Possess more than three unregistered firearms including a pistol or prohibited firearm

s 51D(2) of the Firearms Act 1996

Sequence 33

20 years imprisonment

SNPP 10 years

Possess unauthorised prohibited firearm

s 7(1) of the Firearms Act 1996

Sequence 47

14 years imprisonment

SNPP 4 years

Possess unauthorised prohibited firearm

s 7(1) of the Firearms Act 1996

Sequence 48

14 years imprisonment

SNPP 4 years

Mr Mack now seeks leave to appeal against an aggregate sentence of 8 years imprisonment commencing on 10 April 2018 with a non-parole period of 4 years and 9 months expiring on 9 January 2023 imposed upon him by her Honour Nanette Williams DCJ in the District Court at Dubbo on 25 September 2020. He relies upon the following four grounds of appeal:

Ground 1: The sentencing judge sentenced the applicant twice in relation to 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 Mack v The The Queen

Details

AGLC: Mack v The The Queen [2022] NSWCCA 114
Case: [2022] NSWCCA 114
Decision Date: 08 June 2022

CaseChat Overview and Summary

The matter involved an appeal by the applicant, Mack, against his sentence for various drug and firearm offences. The appeal was heard in the High Court of Australia. Mack had been found guilty of supplying a prohibited drug, possessing an unauthorised prohibited firearm, and possessing more than three unregistered firearms. The central issues in the appeal were whether the sentencing judge had erred by sentencing the applicant twice for the same offence, by failing to take into account his mental health status, and by incorrectly assessing the objective seriousness of the offences. Additionally, the appeal contended that the sentence imposed was manifestly excessive.

The court examined whether the sentencing judge made any errors in the imposition of the sentence. It was accepted that there was an error in sentencing the applicant twice for the same offence. However, the court found that this error was rectified by the subsequent appeal, and it did not affect the overall sentence. Regarding the failure to consider Mack's mental health, the court determined that the sentencing judge had adequately considered this aspect, and it did not lead to an unjust outcome. The court also scrutinised the assessment of objective seriousness and found that the judge's evaluation was appropriate and consistent with the nature of the offences committed. Ultimately, the court concluded that the sentence, while harsh, was not manifestly excessive when considering the circumstances and the legislative framework governing such offences.

The appeal was dismissed as the court found that any errors made did not materially impact the final sentence. The court maintained that the sentence was proportionate to the seriousness of the offences and took into account all relevant factors. The court did not alter the sentence imposed by the lower court.

Orders