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McKinnon v R

McKinnon v R

Case [2020] NSWCCA 106 27 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McKinnon v R [2020] NSWCCA 106
Hearing dates: 15 May 2020
Date of orders: 27 May 2020
Decision date: 27 May 2020
Before: Payne JA at [1]; Beech-Jones J at [39]; N Adams J at [40]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal against sentence allowed.
(3)   Sentence imposed by Grant DCJ on 15 April 2019 is quashed and in lieu thereof the following sentence is imposed:
(a)   an aggregate sentence of 8 years, to commence on 2 May 2018 and expire on 1 May 2026, with an aggregate non-parole period of 5 years and 6 months, to commence on 2 May 2018 and expire on 1 November 2023.
(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:
(a)   for count 1, an indicative sentence of 5 years and 6 months with a non-parole period of 3 years and 9 months.
(b)   for count 2, an indicative sentence of 6 years and 6 months, with a non-parole period of 4 years and 4 months, which indicative sentence takes into account the Form 1 matters attached to this count.

Catchwords:
SENTENCING – aggregate sentence – indictment containing two counts – Form 1 offences – Form 1 attached to one count only – identical indicative sentences for each count – Crown conceded sentencing judge erred in taking Form 1 offences into account on both counts
SENTENCING – appeal against sentence – role of appellate court – resentence – Court of Criminal Appeal to exercise sentencing discretion afresh
Legislation Cited: Crimes Act 1900 (NSW), s 193C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 32(1), 53A(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), 33(3)
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCA 518
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kliendienst v R [2020] NSWCCA 98
R v Nykolyn [2012] NSWCCA 219
Scott v R [2020] NSWCCA 81
Vaughan v R [2020] NSWCCA 3
Category: Principal judgment
Parties: Stuart McKinnon (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Applicant)
E Wilkins SC (Respondent)
Solicitors:
John B Hajje & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/138113
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

15 April 2019

Before:

Grant DCJ

File Number(s):

2018/138113

HEADNOTE

[This headnote is not to be read as part of the judgment]

Stuart McKinnon, the applicant, was sentenced by the District Court in 2019 having pleaded guilty at the earliest opportunity to two drug supply offences. Two “Form 1” offences were to be taken into account. On appeal, the applicant and the Crown agreed that the primary judge had erred in considering the…

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 McKinnon v R

Details

AGLC: McKinnon v R [2020] NSWCCA 106
Case: [2020] NSWCCA 106
Decision Date: 27 May 2020

CaseChat Overview and Summary

The McKinnon case involved the defendant appealing against the sentence imposed by the sentencing judge. The defendant had been found guilty on two counts, both of which were Form 1 offences. The Crown conceded that the sentencing judge had erred in taking the Form 1 offences into account when sentencing the defendant on both counts. The Court of Criminal Appeal was required to determine whether the aggregate sentence imposed by the sentencing judge was appropriate and whether the court should resentence the defendant. The court also needed to consider its role in sentencing appeals and whether it should exercise its discretion afresh.

The court considered the nature of the errors made by the sentencing judge and the appropriate approach to sentencing appeals. The court noted that the sentencing judge had erred in taking the Form 1 offences into account on both counts, which had resulted in an aggregate sentence that was harsher than it should have been. The court held that in cases where the sentencing judge had made an error of this kind, the Court of Criminal Appeal should exercise its discretion afresh and resentence the defendant. The court also noted that it was important for the appellate court to consider the totality of the circumstances in each case and to ensure that the sentence imposed was appropriate.

The Court of Criminal Appeal held that the aggregate sentence imposed by the sentencing judge was inappropriate and that the court should resentence the defendant. The court exercised its discretion afresh and imposed a sentence that reflected the correct approach to sentencing in cases involving Form 1 offences. The court also noted that it was important for the appellate court to consider the totality of the circumstances in each case and to ensure that the sentence imposed was appropriate.

The final orders of the Court of Criminal Appeal were that the appeal against sentence be allowed, the aggregate sentence imposed by the sentencing judge be quashed, and the defendant be resentenced by the Court of Criminal Appeal. The court imposed a sentence of imprisonment for a term of six years and six months, with a non-parole period of four years. The court also noted that it had considered the totality of the circumstances in the case and that the sentence imposed was appropriate.

Orders