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R (Cth) v Madgwick

R (Cth) v Madgwick

Case [2018] NSWCCA 268 28 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

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, 307.11
Cases 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 1
Category: Principal judgment
Parties: Regina (Cth) – Appellant Crown
Kristian James Madgwick – Respondent
Representation:
Counsel:
S Buchen SC – Appellant Crown
E Anderson – Respondent
Solicitors:
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…

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 R (Cth) v Madgwick

Details

AGLC: R (Cth) v Madgwick [2018] NSWCCA 268
Case: [2018] NSWCCA 268
Decision Date: 28 November 2018

CaseChat Overview and Summary

The case of R (Cth) v Madgwick involved the respondent, who was convicted on one count of aiding and abetting the importation of a commercial quantity of a border controlled precursor. The matter came before the court on appeal by the Director of Public Prosecutions (Cth), who sought an increase in the sentence imposed on the respondent. The appeal was based on the respondent's refusal to cooperate as promised, which led to the application of section 16AC(3) and (4) of the Crimes Act (Cth). The court found that the respondent did not have a reasonable excuse for not cooperating and, as such, the sentence was increased.

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.

Orders