McTague v R

[2020] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McTague v R [2020] NSWCCA 83
Hearing dates:	6 March 2020
Date of orders:	01 May 2020
Decision date:	01 May 2020
Before:	Meagher JA at [1] Harrison J at [2] Button J at [53]
Decision:	(1)   Grant leave to appeal. (2)   Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against sentence –comparison between roles of co-offenders – whether error in assessment of objective seriousness – whether due consideration of specific deterrence – whether sentence manifestly excessive
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Drug (Misuse and Trafficking) Act 1985 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Delleci v R [2020] NSWCCA 4 Fenech v R [2018] NSWCCA 160 Grabovac v R [2018] NSWCCA 100 House v The King (1936) 55 CLR 499; [1936] HCA 40 Laughton v R [2019] NSWCCA 318 Mulato v R [2006] NSWCCA 282 Ninness v R [2014] NSWCCA 288 Pak v R [2015] NSWCCA 45 Parente v R [2017] NSWCCA 284; 96 NSWLR 633 Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Stines v R [2019] NSWCCA 115 Vaiusu v R [2017] NSWCCA 71 Vaughan v R [2020] NSWCCA 3 Weinand v R [2013] NSWCCA 202
Category:	Principal judgment
Parties:	Daniel McTague (Applicant) Crown (Respondent)
Representation:	Counsel: J Paingakulam (Applicant) C Curtis (Respondent)   Solicitors: Robyn Richardson Law (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2016/321492
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 04 May 2018 Before: Colefax SC DCJ File Number(s): 2016/321492

Judgment

1. MEAGHER JA: I agree with Harrison J.

2. HARRISON J: Daniel McTague pleaded guilty at the Penrith Local Court on 21 July 2017 to one count of supply not less than the commercial quantity of a prohibited drug (460.79 grams of methylamphetamine) contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985. The maximum penalty for that offence is 20 years imprisonment and/or a fine of $385,000. A standard non-parole period of 10 years imprisonment applies.

3. Notwithstanding that plea, an ex-officio indictment in Mr McTague’s name was presented in the Parramatta District Court on 6 April 2018 which contained four charges as follows:

Count 1: supply commercial quantity of a prohibited drug (400.57 grams of methylamphetamine) contrary to s 25(1) of the Act;

Count 2: supply prohibited drug (52.83 grams of cocaine) contrary to s 25(1) of the Act;

Count 3: supply prohibited drug (52.2 grams of 3,4 methylenedioxymethylamphetamine) contrary to s 25(1) of the Act;

Count 4: supply prohibited drug (0.2 grams of methylene dioxymethylamphetamine) contrary to s 25(1) of the Act.

4. Mr McTague entered pleas of guilty to Counts 1 and 3. He was not required to enter pleas to Counts 2 and 4, which were listed on a Form 1 in relation to Count 1. A related offence of drive whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013 was before the Court on a Certificate pursuant to s 166 of the Criminal Procedure Act 1986.

5. His Honour Judge Colefax sentenced Mr McTague on 4 May 2018 to an aggregate term of 9 years imprisonment with a non-parole period of 5 years and 5 months to date from 26 October 2016. His Honour provided the following indicative sentences:

1. Count 1: imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months.

2. Count 3: imprisonment for 3 years and 9 months.

6. Mr McTague appeals to this Court on the following grounds:

Ground 1: the sentencing judge erred in his assessment of the objective seriousness of Count 1.

Ground 2: the sentencing judge erred in finding that specific deterrence was a matter that was “fully engaged” in sentencing him.

Ground 3: the aggregate sentence is manifestly excessive.

Ground 4: he has a justifiable sense of grievance as a consequence of the sentence imposed upon him and that imposed upon his co-offender Witness A.

Background

7. The facts were agreed. The principal offences were as follows.

8. In March 2016, Mr McTague was one of a number of up-line suppliers of methylamphetamine to Witness A. Witness A was responsible for receiving orders, delivering drugs and collecting money. He received $500 per ounce of drug supplied.

9. Between 11 August 2016 and 24 October 2016, Mr McTague supplied Witness A with methylamphetamine on seven occasions totalling 231.96 grams with an average purity of 79.5%. These supplies produced total revenue of $46,200.

10. On 27 October 2016, the police searched Mr McTague’s premises and recovered a further 168.11 grams of methylamphetamine with a street value of approximately $100,000, in total over 400 grams. On the same occasion, they located 52.2 grams of a substance containing MDMA.

Subjective case

11. Mr McTague gave evidence at his sentence hearing as follows:

12. He was 30 years of age. He started a spray painting apprenticeship at age 17 which he did not complete, working as a third year apprentice until about nine months before he went into custody. He ceased work because of his drug use and would be able to get work in that field again upon his release. Mr McTague would like to finish his apprenticeship.

13. Mr McTague started using marijuana at age 14 and had a serious drug problem before he went into custody. He had not used illegal drugs since then, despite having access to them, and felt very clean. He read a letter of apology to the Court in which he stated that he now understood the damage that drugs do to the community, that he wanted to be able to be a normal person and support his family, that he was now drug free for the first time in nine years and would not be touching drugs again.

14. Mr McTague said that he was attacked in prison when hot water mixed with butter and jam was poured on him, resulting in burns to 48% of his body for which he required surgery and from which he was permanently scarred. This arose from a dispute concerning an extortion attempt by another inmate. As a result of the attack, Mr McTague was now in protection and had been there for 18 months.

15. Mr McTague was working in the prison laundry from 7.30am to 1.30am. He has completed a barista course. The attack in gaol caused him severe stress and he is now unable to trust anyone, including his cell mates.

16. Upon his release from custody, Mr McTague intended to live with his mother and stepfather who were fully supportive of him being rehabilitated and back in the community. They were present in court supporting him. He also had a job to go to upon his release.

17. Mr McTague had two children, aged 9 and 3, with whose mother he had a good relationship and who brought the children to see him. His mother had also been visiting him in custody.

18. Mr McTague’s mother also gave evidence in support of the applicant as follows.

19. Before his arrest, Mr McTague was out of control and having anxiety attacks but he was now completely different and back to his old self. He had been very remorseful about his offending behaviour and said it would never happen again. He now realised that his offending had had an impact on the whole family, not just him. Mr McTague’s mother said that she was willing to take him back in because she could see the change in him and would support him in any rehabilitation efforts that he was making.

20. The attack in gaol traumatised Mr McTague and he was always telling his mother to look behind her when she was leaving the prison to make sure that she was not being followed.

21. Mr McTague’s behaviour at primary school was excellent and he was no trouble at school or at home. Any problems that developed were after he went to live with his father at about age 13.

22. When Mr McTague’s drug use got really bad, his mother asked him to leave and he had an AVO placed on him after he put his fist through the wall. However, she was confident that Mr McTague would be welcomed into, and would behave himself in, her family, or she would not have him there.

Findings at first instance

23. The sentencing judge made the following findings.

1. Mr McTague was entitled to a 25% discount on sentence for his pleas of guilty.

2. Mr McTague was involved in the trafficking of drugs to a substantial degree.

3. Count 1 was slightly above the mid-range and Count 3 was a mid-range offence.

4. There was no relevant aggravating factor in connection with either principal offence.

5. Mr McTague was 30 years of age.

6. Mr McTague’s early years were marked by significant domestic violence and his parents separated when he was 13 years of age. Mr McTague had not had any contact with his father since he was 16 years of age.

7. Mr McTague had also had difficulties in his relationship with his stepfather and his dysfunctional upbringing resulted in a reduction in moral culpability.

8. Mr McTague had abused poly-substances on a daily basis from age 16 until his incarceration, but had been drug free since then.

9. Mr McTague left school in year 10 and worked as a spray-painter but had had no legitimate employment since he was aged 22.

10. Mr McTague’s criminal history was concerned mainly with driving offences and minor drug offences.

11. Mr McTague had made numerous attempts at self-harm since age 16, and the psychologist’s report recorded that he would probably commit suicide if he had access to the means to do so.

12. Mr McTague was the subject of a vicious attack with boiling water while in custody which resulted in burns to 48% of his body. There was no evidence advanced to explain the attack, but Mr McTague had been in protective custody ever since.

13. Mr McTague offended to support his drug habit and to provide an income from which to live.

14. Mr McTague’s prospects of rehabilitation were guarded and would be enhanced by a longer period on parole provided that he engaged with extensive interventions to address his psychological difficulties and related drug addictions.

Grounds 1 and 4

24. Having regard to the way in which Mr McTague argued these grounds, it is convenient to consider them together.

25. His Honour found as follows:

“Clearly, as an up-line supplier of Witness A, [Mr McTague] was involved in the trafficking of drugs to a substantial degree.

In terms of objective seriousness for offences of their kind, the first principal offence is slightly above a mid-range offence…”

26. Witness A was sentenced to an aggregate term of imprisonment for the offence involving Mr McTague and an unrelated robbery in company. His aggregate sentence was 9 years and 6 months imprisonment with a non-parole period of 6 years. The indicative sentences were as follows:

1. Robbery in company: imprisonment for 6 years and 7 months.

2. Supply commercial quantity of methylamphetamine: imprisonment for 6 years and 6 months.

27. However, on 14 December 2018, this Court reduced Witness A’s aggregate sentence to 9 years with a non-parole period of 5 years and 8 months. The intervention of this Court occurred on account of error in connection with the s 23 discount. This Court adopted the same indicative sentences as his Honour before the application of any discounts, but increased the quantum of the combined discounts, resulting in an indicative sentence for the robbery offence of 6 years and an indicative sentence for the supply offence of 6 years with an indicative non-parole period of 4 years. Accordingly, the relevant aggregate sentence imposed on Witness A, with which to compare the sentence imposed on Mr McTague, is one of 9 years with a non-parole period of 5 years and 8 months, as against Mr McTague’s sentence of 9 years with a non-parole period of 5 years and 5 months.

28. When his Honour sentenced Witness A, he found that the corresponding offence was a mid-range offence. That finding was made notwithstanding his Honour’s remarks in these terms:

“There was, however, a significant aggravating feature in the drug offence for Witness A and that is he was on bail for a robbery offence. And of course he was involved in 14 transactions where [Mr McTague] was involved in only 7 (five of which were to the undercover operative and two for his own personal use).”

29. However, the roles of the two offenders were different. Mr McTague was the person who supplied Witness A. Witness A was a street level dealer, although admittedly a trusted associate who also engaged in a significant drug supply. Even accepting that the role of a participant in a drug supply operation “is not to be determined by the selection of a label” (Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [135]), the place of an offender within a drug hierarchy “has always been regarded as an important consideration”: see Wienand v R [2013] NSWCCA 202 at [38]; Grabovac v R [2018] NSWCCA 100 at [95]. A difference between mid-range and slightly above mid-range is ultimately of little appreciable significance, particularly when the respective roles of the two offenders are taken into consideration.

30. Assessment of the respective objective seriousness of the acts of each offender was a matter for his Honour to determine: Mulato v R [2006] NSWCCA 282. In the present case, his Honour made the findings with respect to each offender in the context of a comparison between them. This is not a case of an assessment of the objective seriousness of Mr McTague’s offending by his Honour whilst either intentionally or inadvertently paying no due regard to the competing role of Witness A. Indeed, his Honour was acutely aware of the similarities and dissimilarities between Mr McTague and Witness A: when sentencing Mr McTague, his Honour expressly observed that parity with Witness A “was a relevant consideration”.

31. The inquiry into whether or not sentences must be different in order to attract this Court’s intervention focuses upon an examination of whether there is a marked and unjustified disparity “such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done”: Fenech v R [2018] NSWCCA 160 at [30]-[31].

32. Witness A was entitled to a significant discount for assistance to which Mr McTague was not also entitled. However, even without taking account of that difference, Mr McTague and Witness A were not sentenced upon identical facts. For example, Witness A’s s 25(2) charge reflected 14 actual supplies to undercover operatives. On five of these occasions, Mr McTague was his up-line supplier. There was only partial overlap between the two offenders with respect to that charge. Importantly as well, the fact that Mr McTague’s s 25(2) charge was made up of 168.11 grams of methylamphetamine does not mitigate the seriousness of his offending because it was “merely possessed” for the purposes of supply. As the Crown emphasises, the fact that such a large quantity was in effect being warehoused in his home demonstrated the extent of his elevated position within the hierarchy and explained his ability to supply Witness A regularly with large quantities of methylamphetamine and on short notice.

33. Mr McTague has specifically and uncontroversially recognised that the sentencing exercise with respect to Witness A was not the same as that which his Honour was required to perform for him, “not the least because there were different offences before the Court in each case”. Even so, Mr McTague submitted that the aggregate sentence imposed upon him left him with a justifiable sense of grievance when considering the aggregate sentence imposed on Witness A “for offences including their joint offending”. Mr McTague submitted further that this was so even accepting the lower indicative head sentence attributable to the drug supply offence for Witness A. The robbery in company was entirely distinct offending that involved the commission of a serious physical assault on a victim by Witness A. By contrast, the second principal offence with which Mr McTague was charged was offending in the same character as, and occurring at the same time as, Count 1.

34. In my opinion, these grounds are not made out. The offending of Witness A and Mr McTague is too dissimilar to permit of any meaningful comparison. Witness A was entitled to a s 23 discount which effectively skewed the relative starting point for the indicative sentences provided for him. Mr McTague was more senior in the drug supply hierarchy than Witness A. The head sentences and non-parole periods do not differ greatly and are certainly not so dissimilar to give rise to a justified sense of grievance. His Honour’s characterisations of mid-range and slightly above mid-range are not empirical measurements or terms of art and are necessarily subjective and impressionistic. They are in any event respectively justified in this case by reference to the differing roles of the two offenders. Indeed, his Honour specifically referred to this in the context of his reference to the parity principle:

“Parity is a relevant consideration in connection with the first principal offence. Both Mr McTague and the Crown submitted that there is little to distinguish the role of Witness A to that of Mr McTague. I have understood that submission to mean that, in terms of moral and criminal culpability, there is little to distinguish between the two of them because clearly their roles were factually different.”

35. The Crown submitted, and I accept, that there are too many objective and subjective dissimilarities between Witness A and Mr McTague for any meaningful comparison of their respective aggregate sentences to be made.

36. I would reject these grounds of appeal.

Ground 2

37. His Honour passed the following comment in his remarks on sentence:

“Moreover, considerations of both general and specific deterrence are fully engaged.”

38. The burden of Mr McTague’s submissions in support of this ground is that his Honour appears to have placed too much weight on specific deterrence and insufficient weight on evidence called by him. That evidence was to the following effect.

39. Mr McTague gave evidence at the sentencing proceedings, in the course of which he read a letter written by him that included the following reference:

“Gaol is a dangerous place and I have been traumatised by the whole experience, and I won’t be coming back. There’s no way I will touch any drug ever again. This is the first time I’ve been clean off drugs for about nine years.”

40. The evidence also showed that Mr McTague had been attacked in gaol suffering burns to almost half of his body. He is permanently scarred as a result. He is in custody for the first time. He has a significant motivation to ensure that he does not reoffend. He has been accepted into the methadone programme.

41. His Honour specifically had regard to Mr McTague’s subjective case. However, his Honour also referred to the psychologist’s assessment that Mr McTague was “likely to [shirk] responsibility and follow a meaningless, ineffectual and idle life”. His Honour considered that the prospects of rehabilitation were guarded and that a longer than usual period on parole was necessary in order to undertake “extensive interventions to assist his psychological difficulties and his related drug addictions”.

42. The Crown has submitted that despite evidence capable of supporting a conclusion that Mr McTague was unlikely to reoffend and that specific deterrence was not called for, his Honour was not obliged to form that view. Suggestions that a judge has failed to give sufficient weight to a particular matter are “inherently problematic”: Stines v R [2019] NSWCCA 115 at [22]. Questions of weight are “very much in the province of the sentencing judge”: Vaiusu v R [2017] NSWCCA 71 at [29].

43. Mr McTague’s submission is not that his Honour fell into error in the House v The King sense that he allowed some extraneous matter to guide or affect him, or that he mistook the facts or failed to take into account some material consideration. With great respect, Mr McTague’s proposition is no more or less than a complaint that his Honour did not exercise his discretion differently and in a way more favourable to him. However, unless he can point to some error in the way his Honour arrived at his conclusion, his Honour’s opinion that Mr McTague warranted an element of specific deterrence is unassailable. The fact that Mr McTague might have a different view does not mean that his Honour’s view was wrong.

Ground 3

44. Mr McTague contends that his aggregate sentence is manifestly excessive. He principally argues that there has been an excessive degree of notional accumulation of his two indicative sentences. In substance he contends that, by reason of the fact that there are only two offences and two indicative sentences to consider, the aggregate sentence can be analysed in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. Mr McTague submits in this context that the sentence for Count 3 has been accumulated on the sentence for Count 1 by 18 months (and 11 months so far as the non-parole period is concerned). He submits that this is excessive in circumstances where the drug that is the subject of Count 3 arose out of the same investigation that led to Count 1 and that the drug that is the subject of Count 3 was not actually supplied.

45. These submissions must be rejected in the light of recent authority in this Court. Johnson J in Vaughan v R [2020] NSWCCA 3 at [91], said this:

“The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court. The principle of totality has operation with the sentencing Court to undertake that task bearing in mind totality: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [68]-[84].”

46. The Court went on to say at [100]:

“It would be wrong to consider the indications of the sentencing Judge and treat them as if they were actual and operative sentences with a view to translating them, in some way, into a total sentence which has been calculated by reference to the principles in Pearce v The Queen.”

47. The only relevant question is whether the aggregate sentence reflects the totality of the criminality evident in the two counts for which Mr McTague has been sentenced: see, for example, Delleci v R [2020] NSWCCA 4 at [61].

48. The Crown contended that the total sentence cannot be said to fall outside the range of appropriate sentences within a proper exercise of his Honour’s sentencing discretion. The Crown draws attention in this regard to the following factors:

1. The applicable maximum penalties were significant. The maximum penalty for Count 1 was 20 years, and 15 years for Count 3.

2. A standard non-parole period of 10 years applied to Count 1.

3. Mr McTague was an up-line supplier, who was able to supply significant amounts of methylamphetamine to Witness A at short notice.

4. The amount of methylamphetamine supplied (400.57g) exceeded the commercial threshold (250g) by a significant amount.

5. The supply cocaine charge on the Form 1 attached to Count 1 related to a significant amount of 52.83g of cocaine which needed to be reflected in the sentence.

6. Mr McTague had a criminal record, which included a prior offence of supplying a prohibited drug. The driving offences represented an attitude of continuing disobedience of the law.

7. The significance of general deterrence and the protection of the community in sentencing for drug supply generally (Parente v R [2017] NSWCCA 284; 96 NSWLR 633 at [107]-[112]).

8. Having regard to Mr McTague’s criminal history, it would have been open to impose a prison sentence for the drive whilst disqualified matter on the s 166 certificate.

9. The sentence had to reflect the fact that the drug the subject of Count 3 (MDMA) was a different drug to that which was the subject of count 1 (methylamphetamine). Further, the supply of a third drug (cocaine) was reflected in the Form 1 matter. Mr McTague’s involvement in supplying three different types of drugs was relevant to the question of the extent of his involvement in drug supply (Pak v R [2015] NSWCCA 45 at [30]; Laughton v R [2019] NSWCCA 318 at [36]), as well as to questions of notional accumulation and totality (Ninness v R [2014] NSWCCA 288 at [105]).

49. Having regard to the unavailability of any argument based upon a complaint about his Honour’s “accumulation” of indicative sentences, Mr McTague was effectively limited to a submission that his Honour’s sentence was outside the range of sentences for this type of offending or involving a similar degree of criminal or moral culpability. Mr McTague also brought to account what he wished to maintain was his strong subjective case.

50. However, any attack upon a sentencing discretion must demonstrate that the sentence is unreasonable or plainly unjust. Mr McTague must show that his Honour’s sentencing discretion miscarried in the sense that no proper exercise of that discretion could ever have produced the sentence in question. I am not satisfied that Mr McTague has done so.

51. As the Crown has emphasised, Mr McTague participated at a senior level in the systematic supply of prohibited drugs of different types. He was also in possession of a large amount of money representing the proceeds of illicit drug sales, indicating that his role was that of a trusted member of the group with which he was concerned. It is not possible in my view to conclude that no one could reasonably have sentenced Mr McTague to the aggregate sentence that was imposed upon him in the circumstances.

Conclusion

52. In my opinion, the following orders should be made:

1. Grant leave to appeal.

2. Dismiss the appeal.

53. BUTTON J: I agree with Harrison J.

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Amendments

02 June 2020 - Representation corrected

Decision last updated: 02 June 2020