McCraw v R - [2011] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McCraw v R [2011] NSWCCA 162
Hearing dates: 18 July 2011
Decision date: 22 July 2011
Before: Allsop P at 1; Simpson J at 2; Buddin J at 32
Decision:
1. Time to file a notice of appeal extended;
2. Leave to appeal granted;
3. Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - conspiracy to import not less than the commercial quantity of a border controlled drug - disparity between sentences imposed on applicant and co-offenders - relevance of assessment of the role played by each participant - no error demonstrated - leave granted - appeal dismissed
Legislation Cited: Criminal Code (Cth)
Cases Cited: Cameron v The Queen [2002] HCA 6; 202 CLR 321
R v Edwards (1996) 90 A Crim R 510
Tyler v R; R v Chalmers [2007] NSWCCA 247
Category: Principal judgment
Parties: Terrence John McCraw (Applicant)
Regina (Respondent)
Representation: Counsel:
P Boulten SC (Applicant)
C P O'Donnell (Respondent)
Solicitors:
John Carmody & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2008/16015
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-04-09 00:00:00

Before:

Lakatos DCJ

File Number(s):

2008/11/1040

Judgment

ALLSOP P: I agree with Simpson J.

SIMPSON J: On 17 July 2009, following a jury trial in the District Court, the applicant was convicted of an offence of conspiracy to import not less than the commercial quantity of a border controlled drug (MDMA, commonly known as "ecstasy"). The offence was committed between 1 February 2007 and 9 August 2007. Pursuant to s 11.5 and s 307.1 of the Criminal Code , the applicant was thereby exposed to a maximum custodial penalty of imprisonment for life. On 9 April 2010, Lakatos DCJ sentenced him to imprisonment for 17 years, commencing on 16 June 2009, with a non-parole period of 11 years and 2 months. The applicant will be eligible for release on parole on 15 August 2020.

The applicant seeks an extension of time in which to file an application for leave to appeal against the severity of the sentence. He does not appeal against the conviction.

The applicant was jointly indicted with Dalibor Pasinovic and three others. At the conclusion of the Crown case, Pasinovic gave evidence. During the course of cross-examination by the Crown, he made certain admissions, as a result of which he was re-arraigned and entered a plea of guilty to the conspiracy charge. He also entered a plea of guilty to a charge of knowingly dealing with money (of $50,000 or more) that was the proceeds of crime ("money laundering"). That offence carries a maximum penalty of imprisonment for 15 years ( Criminal Code , s 400.5). On the same day as he sentenced the applicant, Lakatos DCJ sentenced Pasinovic. On the conspiracy charge he imposed a sentence of imprisonment for 15 years and 3 months, commencing on 9 August 2007, with a non-parole period of 10 years and 1…

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 McCraw v R

Details

AGLC: McCraw v R [2011] NSWCCA 162
Case: [2011] NSWCCA 162
Decision Date: 22 July 2011

CaseChat Overview and Summary

In the case of McCraw v R, the applicant appealed against the severity of his sentence, arguing that it was excessive when compared to those of his co-offenders. The applicant had been convicted for his role in a conspiracy to import a commercial quantity of a border controlled drug. The applicant was sentenced to a term of imprisonment, while his co-conspirators received lesser sentences. The applicant argued that the disparity in sentencing demonstrated an error in the assessment of his role in the conspiracy. The Court of Appeal considered whether the primary judge had erred in the assessment of the applicant's role and the relevance of that assessment to the disparity in sentencing.

The court examined whether the primary judge had considered all relevant factors in assessing the applicant's role in the conspiracy, including his level of involvement, the degree of planning and organisation, and the risk posed to the community. The court also considered whether the disparity in sentencing was justified based on the differences in the roles played by the applicant and his co-offenders. The court found that the primary judge had properly considered the relevant factors and that the disparity in sentencing was justified based on the differing roles played by the applicant and his co-conspirators.

The Court of Appeal held that the applicant had not demonstrated any error in the assessment of his role or in the disparity in sentencing. The court found that the primary judge had appropriately considered the applicant's role and that the disparity in sentencing was justified. The court granted leave to appeal but dismissed the appeal, affirming the original sentence imposed on the applicant. The court emphasised the importance of considering the individual circumstances of each participant in a conspiracy and the need for proportionality in sentencing.

Orders