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McRae v The King

McRae v The King

Case [2023] NSWCCA 55 22 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McRae v R [2023] NSWCCA 55
Hearing dates: 13 February 2023
Date of orders: 22 March 2023
Decision date: 22 March 2023
Before: Wilson J at [1]
N Adams J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME — Appeals — Application for leave to appeal – Appeal against sentence – whether sentencing judge conflated role of the offender with that of co-offenders – whether sentencing judge had undue regard to the activities of co-offenders
CRIME — Appeals — Appeal against sentence — Manifest excess – whether correct to apply mathematical calculations

Legislation Cited:
Crimes Act 1900 (NSW), ss 193B(3), 193C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases Cited:
Hughes v R [2018] NSWCCA 2
Merheb v R [2021] NSWCCA 224
R v O’Donoghue (1988) 34 A Crim R 397

Category: Principal judgment
Parties: Hayley McRae (Applicant)
The Crown (Respondent)
Representation:
Counsel:
D Roff (Applicant)
S Lind (Respondent)
Solicitors:
Maverick Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/105336
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 April 2022

Before:

King SC DCJ

File Number(s):

2021/105336

HEADNOTE

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

The applicant sought leave to appeal from a sentence imposed upon her in respect of one count of dealing with proceeds of crime being reckless as to whether it was the proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900 (NSW) and one count of deal with property where there are reasonable grounds to suspect that the property is the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW).

In 2020, police commenced investigations into an organised money laundering scheme. The applicant and a number of other co-offenders were recruited to participate in the scheme. The applicant established a company, opened bank accounts, flew from the Gold Coast to Sydney on a number of occasions, deposited cash given to her by persons higher up in the scheme into the bank accounts and then transferred the money to bank accounts controlled by a cryptocurrency dealer in Queensland.

Count 1 involved the sum of $188,000 in cash. Count 2 involved the sum of $883,500 in cash.

The applicant pleaded guilty in the District Court of NSW to both counts. The sentencing judge allowed for a partial accumulation and imposed a total sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months.

The applicant sought leave to appeal on two grounds, being:

his Honour erred in assessing the role of the applicant, including by having undue regard to the activities of others; and
the sentence was manifestly excessive.

The Court per Cavanagh J (Wilson and N Adams JJ agreeing) granted leave to appeal but dismissed…

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 McRae v The King

Details

AGLC: McRae v The King [2023] NSWCCA 55
Case: [2023] NSWCCA 55
Decision Date: 22 March 2023

CaseChat Overview and Summary

The case of McRae v The King involves an appeal against a sentence imposed by the sentencing judge. The appellant, McRae, was convicted of a crime and sentenced to a term of imprisonment. McRae challenges the sentence, contending that the sentencing judge erred in several respects. Specifically, McRae argues that the sentencing judge wrongly conflated the roles of the offender with those of co-offenders, and that the judge placed undue emphasis on the activities of the co-offenders when determining the appropriate sentence. Additionally, McRae contends that the mathematical calculations applied by the sentencing judge resulted in a manifestly excessive sentence.

The court was required to determine whether the sentencing judge had indeed conflated the roles of McRae with those of his co-offenders and whether the judge had given undue regard to their activities. The court also had to consider whether the application of mathematical calculations by the sentencing judge led to a sentence that was manifestly excessive. These legal issues involved a nuanced assessment of the sentencing principles and the appropriate weight to be given to various factors in the context of the crime committed.

In examining these issues, the court held that the sentencing judge did not conflate the roles of McRae with those of his co-offenders nor did the judge place undue emphasis on their activities. The court further determined that the mathematical calculations applied by the sentencing judge were not inappropriate in the circumstances. Consequently, the appeal against the sentence was dismissed as the sentence was found to be within the appropriate range.

No specific orders were made beyond the dismissal of the appeal. The sentence imposed by the original sentencing judge was upheld, and McRae's application for leave to appeal was denied.

Orders