Legal Research
Cases
McCabe v The King

McCabe v The King

Case [2023] VSCA 329 19 December 2023

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0018

ROWAN MCCABE	Applicant
v
THE KING	Respondent

---

JUDGES:	MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2023
DATE OF JUDGMENT:	19 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 329
JUDGMENT APPEALED FROM:	[2019] VCC 1808 (Judge Dean)

---

CRIMINAL LAW – Sentence – Application for extension of time within which to file application for leave to appeal – Applicant guilty of trafficking large commercial quantity of drug of dependence – Total effective sentence of 11 years, non-parole period of 7 years – Whether objective gravity of offending and offender’s culpability incorrectly assessed – No error – Extension of time refused.

Drugs, Poisons and Controlled Substances Act 1981, s 71, sch 11.

Wong v The Queen (2001) 207 CLR 584; R v Pidoto (2006) 14 VR 269; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Lieu v The Queen (2016) 263 A Crim R 173, considered.

---

Counsel
Applicant:		In person
Respondent:		Ms K Hamill
Solicitors
Applicant:	--
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
TAYLOR JA:

Introduction

On 28 October 2019, the applicant was convicted by a jury in the County Court of one charge of trafficking in a large commercial quantity of a drug of dependence (namely, 5.289 kg of MDMA, also known as ‘ecstasy’).[1] The maximum penalty for that offence is a life term of imprisonment. Following a plea on 31 October 2019, on 7 November 2019 the applicant was sentenced to a term of imprisonment of 11 years, of which he was ordered to serve 7 years before being eligible for parole.
[1]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCS Act’). When mixed with another substance, as it was in this case, a large commercial quantity of MDMA is not less than 1 kg of the mixed MDMA and other substance: DPCS Act, s 70 and sch 11, pt 3.
The applicant sought to apply for leave to appeal against his sentence on the ground that the sentencing judge incorrectly assessed the objective gravity of his offending and level of culpability, resulting in an unduly high sentence.[2]
[2]In oral submissions, the applicant abandoned a second proposed ground of appeal, which was that fresh and compelling evidence in the form of a global pandemic has resulted in acute hardship to the applicant and his family, in light of which the sentence imposed is now excessive.
To seek leave to appeal against his conviction or sentence the applicant was required to file an application for leave to appeal within 28 days of being sentenced.[3] As the applicant was sentenced on 7 November 2019, this period expired on 6 December 2019. More than 18 months out of time, the applicant filed an application for leave to appeal his conviction only. This Court refused an extension of time to apply for leave to appeal against conviction on…

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 McCabe v The King

Details

AGLC: McCabe v The King [2023] VSCA 329
Case: [2023] VSCA 329
Decision Date: 19 December 2023

CaseChat Overview and Summary

The McCabe v The King case involved the applicant, McCabe, who had been convicted of trafficking a large commercial quantity of a drug of dependence. McCabe sought an extension of time to file an application for leave to appeal against his sentence. The total effective sentence imposed on McCabe was 11 years, with a non-parole period of 7 years. The primary legal issues that the court had to address were whether the objective gravity of the offending and the culpability of the offender had been incorrectly assessed, and if an extension of time to file the application for leave to appeal should be granted.

In examining the case, the court referred to several precedents including Wong v The Queen, R v Pidoto, DPP (Cth) v Maxwell, and Lieu v The Queen. The court meticulously considered these cases to determine if there was an error in the assessment of the objective gravity of the offence or the culpability of the offender. The court found that there was no error in the original assessment and therefore, the application for an extension of time to file the appeal was denied. The reasoning of the court was grounded in the principle that the sentencing process had correctly evaluated the seriousness of the crime and McCabe's culpability, and therefore, no extension of time was warranted.

The court concluded that McCabe's objective gravity of offending and culpability had been correctly assessed and no error was found in the original sentence. Consequently, McCabe's application for an extension of time to file an application for leave to appeal was refused. This decision highlights the importance of accurate sentencing assessments and the limited grounds for extending the time for appeals in criminal cases.

Orders