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Macreadie v The King

Macreadie v The King

Case [2023] NSWCCA 162 5 July 2023

Appeal

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Macreadie v R [2023] NSWCCA 162
Hearing dates: 17 February 2023
Date of orders: 05 July 2023
Decision date: 05 July 2023
Before: Beech-Jones CJ at CL at [1];
Button J at [2];
McNaughton J at [5]
Decision:
(1) The applicant be granted leave to appeal.
(2) The appeal be dismissed.

Catchwords:
CRIME – appeal – sentence appeal – whether sentencing judge’s factual finding about the applicant’s purpose for entering the premises was open – aggravated break, enter and commit serious indictable offence – aggravated sexual assault against sleeping child –surrounding evidence led to finding which was open beyond reasonable doubt – it was open to find the applicant’s purpose for entering the home was to commit the sexual assault

Legislation Cited:
Crimes Act 1900 (NSW) ss 61J, 112
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 43, 54B
Criminal Appeal Act 1912 (NSW, s 5
District Court Rules 1973 (NSW) Pt 53 r 12
Mental Health Act 2007 (NSW)

Cases Cited:
A v R [2020] NSWCCA 145
Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
Fisher v R; R v Fisher [2021] NSWCCA 91
Hordern v R [2019] NSWCCA 138
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Daley [2010] NSWCCA 223
R v O’Donoghue (1988) 34 A Crim R 397
Ragg v R [2022] NSWCCA 150
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Yin v R [2019] NSWCCA 217

Category: Principal judgment
Parties: Christopher Anthony Macreadie (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/242903
Publication restriction: The non-publication orders previously made in this matter are continued until further order of the Court.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 August 2021

Before:

McLennan SC DCJ

File Number(s):

2020/242903

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 29 June 2018 Christopher Macreadie (“the applicant”) entered the home of a sleeping 14-year-old girl (“SB”) via a rear glass sliding door. SB and her mother were asleep on lounge chairs in the lounge room. The applicant entered various rooms in the house and collected intimate items belonging to SB, including bikini bottoms, underpants and photographs. At approximately 2:00am SB awoke to the applicant rubbing the outside of her vagina with his hand, he was touching her skin to skin. The applicant inserted his fingers into her vagina whilst SB pretended to be asleep. SB felt the applicant lay partially on top of her, continuing to insert his fingers into her vagina. She sat up in pain. The applicant got off SB and made a ‘shhh’ sound. He ran to the glass sliding door, and picked up a…

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 Macreadie v The King

Details

AGLC: Macreadie v The King [2023] NSWCCA 162
Case: [2023] NSWCCA 162
Decision Date: 05 July 2023

CaseChat Overview and Summary

In the case of Macreadie v The King, the appellant sought to appeal against his sentence for committing an aggravated break, enter and commit a serious indictable offence, specifically an aggravated sexual assault against a sleeping child. The High Court was tasked with determining whether the sentencing judge’s factual finding regarding the purpose of the appellant's entry into the premises was open on the evidence led. The appellant argued that the surrounding evidence did not support the conclusion that he entered the home with the purpose of committing the sexual assault.

The court was required to examine the evidence presented and determine if it was open to the sentencing judge to conclude that the appellant's purpose was to commit the sexual assault. The High Court considered the nature of the crime, the surrounding circumstances, and whether the evidence was sufficient to establish the appellant's intent beyond reasonable doubt. The court also examined the sentencing principles and the factors that should be considered in determining the appropriate sentence.

The High Court held that the sentencing judge's factual finding was open on the evidence led. The court found that the evidence, when viewed in its entirety, supported the conclusion that the appellant's purpose for entering the home was to commit the sexual assault. The court noted that the nature of the offence, the vulnerability of the victim, and the appellant's actions leading up to the assault all pointed to this conclusion. The court also emphasised that the sentencing judge was entitled to draw inferences from the evidence and that these inferences were open on the evidence.

In light of the findings, the High Court dismissed the appeal and upheld the sentence imposed by the sentencing judge. The court emphasised the importance of considering the surrounding circumstances and the principles of sentencing in determining an appropriate sentence for such a serious offence. The decision serves as a reminder of the importance of the evidence in establishing the purpose of an offender's actions and the weight that can be given to such evidence in sentencing.

Orders