Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
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Medium Neutral Citation: R (Cth) v Madgwick [2018] NSWCCA 268 Hearing dates: 24 October 2018 Decision date: 28 November 2018 Before: Hoeben CJ at CL at [1];
Davies J at [98];
Button J at [99]Decision: (1) The Crown appeal against the sentence imposed by his Honour Judge Frearson SC on 17 February 2017 is allowed.
(2) The sentence imposed by his Honour on 17 February 2017 is quashed.
(3) In lieu thereof, the respondent is sentenced to imprisonment with a head sentence of 6 years and 10 months, commencing 17 February 2017, with a non-parole period of 3 years and 5 months, expiring 16 July 2020, with the balance of term expiring 16 December 2023.
In respect of the respondent’s appeal against sentence.
(1) Leave to appeal is granted but the appeal is dismissed.Catchwords: CRIMINAL LAW – sentence appeal by DPP (Cth) – one count of aid and abet importation of a commercial quantity of a border controlled precursor – the sentence imposed included a deduction for future co-operation – respondent subsequently refused to co-operate – application of s 16AC(3) and (4) of the Crimes Act (Cth) – appeal by DPP successful – finding that respondent without reasonable excuse did not co-operate in part in accordance with his undertaking – sentence increased – respondent’s appeal against sentence – failure by sentencing judge to take into account utilitarian value of plea of guilty – error conceded by DPP – need to resentence – no lesser sentence warranted in law – respondent’s appeal dismissed. Legislation Cited: Crimes Act 1914 (Cth) – s 16A(2)(h), 16AC
Criminal Code (Cth) – ss 11.2, 307.11Cases Cited: Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; 4 VR 285
Huang v R [2018] NSWCCA 57; 331 FLR 377
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Musa v R [2018] NSWCCA 192
Naizmand v R [2018] NSWCCA 25
Obiekwe v R [2018] NSWCCA 55
Peters v R [2018] NSWCCA 126
R v Clinton George Ribbon (District Court (SA), Stretton DCJ, 24 July 2018, unrep).
R v Hammond [2001] NSWCCA 34; 121 A Crim R 1
R v KS [2005] NSWCCA 87
R v MI [2018] NSWCCA 251
R v YZ [1999] NSWCCA 263
Sintat v R [2018] NSWCCA 165
Wagner v R [2018] NSWCCA 124
Xiao v R [2018] NSWCCA 4; 96 NSWLR 1Category: Principal judgment Parties: Regina (Cth) – Appellant Crown
Kristian James Madgwick – RespondentRepresentation: Counsel:
Solicitors:
S Buchen SC – Appellant Crown
E Anderson – Respondent
Commonwealth Director of Public Prosecutions – Appellant Crown
One Group Legal – Respondent
File Number(s): 2014/309022 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 17 February 2017
- Before:
- Frearson SC DCJ
- File Number(s):
- 2014/309022
JUDGMENT
-
HOEBEN CJ at CL:
Offence and sentence
The respondent pleaded…
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- AGLC
- R (Cth) v Madgwick [2018] NSWCCA 268
- Case
- [2018] NSWCCA 268
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the respondent had a reasonable excuse for not cooperating, and whether the sentencing judge had failed to consider the utilitarian value of the respondent's guilty plea. The court found that the respondent did not have a reasonable excuse for not cooperating, and that the sentencing judge had indeed failed to take into account the utilitarian value of the respondent's plea of guilty. The Director of Public Prosecutions conceded this error, leading to the need for the court to resentence the respondent. However, the court found that no lesser sentence was warranted in law.
The court dismissed the respondent's appeal against the sentence, finding that the sentence imposed was appropriate given the circumstances. The court noted that the respondent had not provided any evidence to suggest that a lesser sentence would be warranted, and that the increase in sentence due to the lack of cooperation was justified. The court further noted that the respondent's refusal to cooperate was a significant factor in the decision to increase the sentence, and that this factor had not been adequately considered by the sentencing judge. Ultimately, the court found that the sentence imposed was appropriate and dismissed the respondent's appeal against the sentence.
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