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McTague v R

McTague v R

Case [2020] NSWCCA 83 1 May 2020

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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

MEAGHER JA: I agree with Harrison J.
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.
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.

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…

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 McTague v R

Details

AGLC: McTague v The Queen [2020] NSWCCA 83
Case: [2020] NSWCCA 83
Decision Date: 01 May 2020

CaseChat Overview and Summary

The matter of McTague v R involved the appellant appealing against the sentence imposed by the Supreme Court of Victoria. The appellant, McTague, had been convicted of conspiracy to murder and was sentenced to a term of imprisonment. The primary issue before the court was whether the sentence imposed was manifestly excessive, considering the appellant's role in the crime compared to that of his co-offenders, and whether the court had adequately considered the objective seriousness of the offence and the need for specific deterrence.

The court examined the role of the appellant in the conspiracy, noting that while McTague was involved, his role was less central than that of his co-offenders. The court assessed whether the sentence imposed adequately reflected the comparative roles of the participants and whether the objective seriousness of the crime had been appropriately evaluated. Furthermore, the court considered whether the sentence sufficiently addressed the need for specific deterrence, ensuring that the punishment was proportionate to the crime and served to deter the appellant and others from engaging in similar conduct in the future. The court concluded that the sentence was not manifestly excessive, as it had properly balanced the appellant's role, the objective seriousness of the crime, and the need for specific deterrence.

The appeal was dismissed, and the sentence upheld. The court found that the Supreme Court had correctly assessed the appellant's role and the objective seriousness of the offence, and had appropriately considered the need for specific deterrence. The sentence imposed was deemed to be proportionate and not manifestly excessive.

Orders