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McCarthy v R

McCarthy v R

Case [2011] NSWCCA 64 5 April 2011

Sentencing

Aggravated & Exemplary Damages

Early Guilty Plea

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McCarthy v R [2011] NSWCCA 64
Hearing dates: 28 October 2010
Decision date: 05 April 2011
Before: Handley AJA at [1]
Adams J at [2]
Howie AJ at [82]
Decision:
Leave to appeal is granted, the appeal is upheld and sentences substituted as follows:
The overall sentence is seven years and six months with an effective non-parole period of five years and six months calculated as follows:
Count 1: taking into account the Form 1 offence committed on 14-15 October 2007: A non-parole period of three years and six months commencing on 28 November 2007 and ending on 27 May 2011 with a balance of term of one year and six months commencing on 28 May 2011 and ending on 27 November 2012.
Count 2: A non-parole period of nine months commencing on 28 February 2010 and ending on 27 November 2010 with a balance of term of six months commencing on 28 November 2010 and ending on 27 May 2011.
Count 3: taking into account the Form 1 offence committed on 25 September 2007: A non-parole period of two years commencing on 28 November 2007 and ending on 27 November 2009 with a balance of one year from 28 November 2009 to 27 November 2010.
Count 4: taking into account the Form 1 offence committed on 11 April 2005: A non-parole period of three years and six months commencing 28 November 2008 and ending on 27 May 2012 with a balance of term of one year and six months commencing on 28 May 2012 and ending on 27 November 2013.
Count 5: A non-parole period of one year commencing on 28 November 2008 and ending on 27 November 2009 with a balance of term of six months commencing on 28 November 2009 and ending on 27 May 2010.
Count 6: taking into account the Form 1 offence committed on 16-20 July 2008: A non-parole period of three years commencing on 28 May 2010 and ending on 27 May 2013 with a balance of term of two years commencing on 28 May 2013 and ending on 27 May 2015.
Count 7: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year commencing on 28 November 2012 and ending on 27 November 2013.
Count 8: A non-parole period of one year and six months commencing on 28 May 2010 and ending on 27 November 2011 with a balance of term of six months commencing on 28 November 2011 and ending on 27 May 2012.
Count 9: taking into account the Form 1 offence committed on 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014.
Count…

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 McCarthy v R

Details

AGLC: McCarthy v R [2011] NSWCCA 64
Case: [2011] NSWCCA 64
Decision Date: 05 April 2011

CaseChat Overview and Summary

The appellant, McCarthy, was convicted of drug trafficking and drug possession offences. He appealed against his sentence, arguing that it was manifestly excessive. The Crown accepted that the sentence was at the higher end of the scale but argued that the appellant's criminal history and culpability warranted a harsher penalty. The appeal was heard by the New South Wales Court of Criminal Appeal. The court had to determine whether the sentence was manifestly excessive and whether the sentencing judge had failed to adequately consider statutory requirements and sentencing principles.

The court examined whether the sentence was manifestly excessive by considering the inherent and aggravating features of the offences and the mitigating factors. The court noted that the appellant had a history of drug-related offending and had committed the offences to satisfy his drug habit. However, the court also considered the appellant's prospects of rehabilitation, his early guilty plea, and his substantial assistance to the authorities. The court held that the sentence was not manifestly excessive, and that the sentencing judge had considered the relevant statutory requirements and sentencing principles.

The court held that the sentencing judge had adequately considered the statutory requirements and sentencing principles, including the JIRS statistics and comparative cases. The court found that the appellant's criminal history and culpability warranted a harsher penalty, and that the sentence was not manifestly excessive. The court also noted that the Crimes (Sentencing Procedure) Act s 23(3) permits a reasonable disproportion in sentence where there are substantial and compelling circumstances.

The appeal was dismissed. The appellant's sentence was affirmed.

Orders