Bell CJ; Kirk JA; Harrison CJ at CL; Davies J; Sweeney J.
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Herbert DCJ on 28 October 2022.
(4) In lieu thereof, sentence Mr McGregor to an aggregate term of imprisonment of 10 years and 9 months commencing on 5 October 2021 and expiring on 4 July 2032 with a non-parole period of 7 years and 6 months expiring on 4 April 2029.
Catchwords:
CRIME — appeals — appeal against sentence — statutory mandatory minimum sentence prescribed — proper construction of s 16AAC of the Crimes Act 1914 (Cth) — reduction of mandatory minimum where provisions in s 16AAC(3) apply — error by treating provision as capping maximum discount as a proportion of the mandatory minimum, as opposed to provision setting a minimum floor
SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law — whether aggregate sentencing under s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) can be applied to federal offences — whether s 53A is capable of being picked up by s 68(1) of the Judiciary Act 1903 (Cth) — whether there is a conflict between Pt 1B of the Crimes Act and s 53A(2)(b) — whether there is a conflict between s 16AAA of the Crimes Act and s 53A(2)(b) — s 53A is capable of being picked up as federal law and does not conflict with Pt 1B or s 16AAA of the Crimes Act
[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.
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AGLC
McGregor v The King [2024] NSWCCA 200
Case
[2024] NSWCCA 200
Decision Date
CaseChat Overview and Summary
The appellant, McGregor, was convicted in the District Court of New South Wales for multiple drug-related offences under Commonwealth law. Following his conviction, McGregor was sentenced to a term of imprisonment with a mandatory minimum term as prescribed by the Crimes Act 1914 (Cth). Dissatisfied with the sentence, McGregor appealed to the High Court, arguing that the trial judge had misapplied the statutory mandatory minimum sentence provisions. The appeal also contested the applicability of the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) to federal offences and whether these provisions could be applied under the federal judicial framework.
The primary legal issues before the court were the correct interpretation of section 16AAC of the Crimes Act 1914 (Cth) concerning the reduction of mandatory minimum sentences and the applicability of New South Wales' aggregate sentencing provisions to federal offences. The court had to determine if there was a conflict between the New South Wales aggregate sentencing provisions and the Commonwealth provisions, particularly sections 16AAA and 16AAC(3) of the Crimes Act, and whether the New South Wales provisions could be applied under the federal judicial framework as outlined in the Judiciary Act 1903 (Cth).
The court found that the trial judge had erred by treating the discount provision in section 16AAC(3) as a capping maximum rather than a minimum floor for the discount. This misapplication led to an incorrect calculation of the mandatory minimum sentence. Regarding the applicability of the aggregate sentencing provisions, the court held that section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) could be applied to federal offences and was not in conflict with the Crimes Act or the relevant sections of the Judiciary Act. The court clarified that the New South Wales aggregate sentencing provisions could be picked up as federal law and did not conflict with the Commonwealth provisions.
The High Court allowed the appeal, set aside the sentence imposed by the District Court, and remitted the matter back to the District Court for re-sentencing. The court provided detailed directions for the re-sentencing process, ensuring that the correct statutory mandatory minimum was applied and that the aggregate sentencing provisions were appropriately considered.