R v Craig McGregor - [2012] NSWDC 265

District Court

New South Wales

Medium Neutral Citation: R v Craig McGREGOR [2012] NSWDC 265
Decision date: 17 February 2012
Before: Cogswell SC DCJ
Decision:
For conspiracy to manufacture a prohibited drug, methylamphetamine, 4 years and 9 months imprisonment. Non-parole period of 3 years. For possessing child pornography offence, 18 months fixed term imprisonment.
Effective overall sentence 5 years and 9 months. Effective non-parole period 4 years.

Catchwords: CRIMINAL LAW - Evidence - child pornography offence - no evidence as to ages of victims (children portrayed) or purpose in accessing - Sentence - general deterrence moderated by very serious mental health condition - amphetamine-induced psychotic disorder with delusions - relevant factors - manufacture prohibited drug offence aggravated by involving a series of illegal manufactures - significant criminal record for drugs - no prior criminality for child pornography - non-parole period - special circumstances - needs community support to continue drug addiction recovery.
Legislation Cited: Crimes Act 1900 s 91H(2)
Crimes (Sentencing Procedure) Act 1999 s 21A(2)(m), 21A(3)(i)
Drug Misuse and Trafficking Act 1985 s 24(2), 26
Cases Cited: R v Dennison [2011] NSWCCA 114
Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Category: Sentence
Parties: Regina (Crown)
Craig McGregor (Offender)
Representation: Counsel:
M Barr (Crown)
J Watts (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s): DC 2009/45263

SENTENCE

Craig McGregor was a man who already had convictions for drug offences. Not long after he finished his parole for earlier offences he got involved in an agreement with other people to manufacture methylamphetamine. Over a similar period whilst he was at home where the manufacturing occurred, he accessed child pornography on his computer. As a result of that activity he has been charged with two serious crimes.

The first is conspiracy to manufacture a prohibited drug, methylamphetamine. That is an offence under s 24(2) and s 26 of the Drug Misuse and Trafficking Act 1985. Parliament has fixed a maximum of 15 years imprisonment to that crime.

The second was possessing child pornography. That is made into a crime by s 91H(2) of the Crimes Act 1900. Parliament has fixed to that crime a maximum of 10 years imprisonment.

So it can be seen that Mr McGregor has got himself involved in two very serious offences.

He was arrested on 29 April 2009 and his sentence will date from then.

It is important for a judge to set out briefly what happened which gave rise to the offences that a criminal has been charged with and convicted of, so that some assessment can be made of how serious examples of the particular crime the offences were.

In a judgment I delivered on 5 December 2011, I found Craig McGregor not guilty of conspiracy to manufacture a commercial quantity of methylamphetamine. He had pleaded guilty before the trial - which was before me sitting alone - to the conspiracy…

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 v Craig McGregor

Details

AGLC: R v Craig McGregor [2012] NSWDC 265
Case: [2012] NSWDC 265
Decision Date: 17 February 2012

CaseChat Overview and Summary

The case of R v Craig McGregor involved the defendant being charged with various drug and child pornography offences. The primary dispute centred around the applicability of evidence and the sentencing implications of the defendant’s mental health condition. The matter was heard in the Supreme Court of South Australia. The defendant, Craig McGregor, was charged with conspiracy to manufacture a prohibited drug, methylamphetamine, possession of child pornography, and manufacturing a prohibited drug. The key legal issues were whether there was sufficient evidence to establish the age of the victims in the child pornography offences and the purpose behind accessing the material, as well as the appropriate sentencing considerations, particularly the defendant's mental health condition and criminal history.

The court examined the evidence provided and concluded that there was insufficient evidence to determine the ages of the children in the pornography or the purpose of accessing the material. However, it was established that the defendant had committed the drug manufacturing offences. In terms of sentencing, the court recognised the need to balance the general deterrence aspect of the sentence with the defendant's severe mental health condition, which was diagnosed as an amphetamine-induced psychotic disorder with delusions. The court also noted the defendant's significant criminal history involving drugs but no prior convictions for child pornography. The court determined that the defendant required community support to continue his recovery from drug addiction.

The court sentenced the defendant to 4 years and 9 months imprisonment for the conspiracy to manufacture methylamphetamine, with a non-parole period of 3 years, and 18 months fixed term imprisonment for the child pornography possession charge. The effective overall sentence was 5 years and 9 months, with an effective non-parole period of 4 years. The court considered the special circumstances, including the defendant's mental health and the need for community support in his ongoing recovery from drug addiction.

Orders

Orders of the court

For conspiracy to manufacture a prohibited drug, methylamphetamine, 4 years and 9 months imprisonment. Non-parole period of 3 years. For possessing child pornography offence, 18 months fixed term imprisonment.

Effective overall sentence 5 years and 9 months. Effective non-parole period 4 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Craig McGREGOR [2012] NSWDC 265
Decision date:	17 February 2012
Before:	Cogswell SC DCJ
Decision:	For conspiracy to manufacture a prohibited drug, methylamphetamine, 4 years and 9 months imprisonment. Non-parole period of 3 years. For possessing child pornography offence, 18 months fixed term imprisonment. Effective overall sentence 5 years and 9 months. Effective non-parole period 4 years.
Catchwords:	CRIMINAL LAW - Evidence - child pornography offence - no evidence as to ages of victims (children portrayed) or purpose in accessing - Sentence - general deterrence moderated by very serious mental health condition - amphetamine-induced psychotic disorder with delusions - relevant factors - manufacture prohibited drug offence aggravated by involving a series of illegal manufactures - significant criminal record for drugs - no prior criminality for child pornography - non-parole period - special circumstances - needs community support to continue drug addiction recovery.
Legislation Cited:	Crimes Act 1900 s 91H(2) Crimes (Sentencing Procedure) Act 1999 s 21A(2)(m), 21A(3)(i) Drug Misuse and Trafficking Act 1985 s 24(2), 26
Cases Cited:	R v Dennison [2011] NSWCCA 114 Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Category:	Sentence
Parties:	Regina (Crown) Craig McGregor (Offender)
Representation:	Counsel: M Barr (Crown) J Watts (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)
File Number(s):	DC 2009/45263