McGregor v The King

Case [2024] NSWCCA 200


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: McGregor v R [2024] NSWCCA 200
Hearing dates: 31 May 2024
Date of orders: 01 November 2024
Decision date: 01 November 2024
Before: 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

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25A, 44, 49, 53A, 54B, s 66

Crimes Act 1914 (Cth), ss 3, 4K, 16AAA, 16AAB, 16AAC, 16E, 19, 19AB, 19AG, 20AB

Criminal Appeal Act 1912 (NSW), s 5D

Judiciary Act 1903 (Cth), s 68

Sentencing Act 1991 (Vic), s 9

Sentencing Act 1995 (NT), s 52

Sentencing Act 1997 (Tas), s 11

Sentencing Act 2017 (SA), s 26

Cases Cited:

Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298

Batak v R [2024] NSWCCA 66

Chan v R [2023] NSWCCA 206

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Commonwealth Director of Public Prosecutions v ABC (a pseudonym) [2023] VCC 446

CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64

Cullen v R [2014] NSWCCA 162

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556

Glasheen v R [2022] NSWCCA 191

Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hurt v The Queen (2022) 18 ACTLR 272; [2022] ACTCA 49

Hurt v The King (2024) 98 ALJR 485;

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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.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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