R v MacDonald (No 2) - [2025] NSWDC 181

District Court

New South Wales

Medium Neutral Citation: R v MacDonald (No 2) [2025] NSWDC 181
Hearing dates: 4 April 2025
Date of orders: 4 April 2025
Decision date: 04 April 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Resentence according to Court of Criminal Appeal remit
Count 11 – Indicated sentence of imprisonment of 9 months
Aggregate sentence of imprisonment of 8 years 9 months with a non-parole period of 5 years 3 months

Catchwords:
CRIME — Historic child sex offences — Assault and act of indecency of a girl
CRIME — Appeal and review — Appeal District Court to Supreme Court — Matter remitted to District Court for resentence
RESENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Multiple offences — Totality — Not impose a crushing sentence
SENTENCING — Subjective considerations on sentence — Chronic health issues — Advanced age — Mobility issues — Vulnerable in custody

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited:
MacDonald v R [2024] NSWCCA 240
R v MacDonald [2024] [2024] NSWDC 136

Category: Sentence
Parties: Kenneth MacDonald (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
R Steward (for the offender)
N Keay (for the Crown)
Solicitors:
Kells Your Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/113474
Publication restriction: Statutory non-publication applies in relation to the names of the complainants.

JUDGMENT – ex tempore revised

Matter for resentence

In 2023 Kenneth MacDonald was convicted by a jury and sentenced by me for a number of serious offences against two young girls. The offences dated back to the 1980s: In 2024 I sentenced MacDonald to an aggregate sentence of 9 years with a non-parole period of 5 years 6 months: R v MacDonald [2024] NSWDC 136. The sentence commenced on 4 December 2023. The sentence I indicated for Count 11 was 2 years
As is his right, MacDonald appealed against his conviction. The Court of Criminal Appeal by majority dismissed the appeals with one important exception, they allowed the conviction appeal in respect of Count 11: MacDonald v R [2024] NSWCCA 240.
A close examination by those who appeared for MacDonald on appeal, but not at trial, revealed that the transcript and the complainant’s evidence did not specifically state that digital penetration had occurred during the incident, the subject of Count 11.
In her Court of Criminal Appeal judgment Adamson J noted at [221] to [223], (with Ierace J’s concurrence at [261]) that:

“As is apparent from the narrative of the evidence, MA's description of the conduct in respect of counts 4 and 11 was relatively similar: that the applicant had put his hand down her pants. However, in respect of count 4, MA clarified that there was digital penetration, describing "[h]e put his hands down my pants and fingers were inserted into my vagina" when asked in her examination-in-chief "what did he do to you?". However, no such clarifying evidence was given in respect of count 11.…

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 MacDonald (No 2)

Details

AGLC: R v MacDonald (No 2) [2025] NSWDC 181
Case: [2025] NSWDC 181
Decision Date: 04 April 2025

CaseChat Overview and Summary

The appellant, MacDonald, appealed against his sentence in the District Court, which had been imposed after he was found guilty of multiple historic child sex offences. The Supreme Court considered the appeal and remitted the matter back to the District Court for re-sentencing. The key issues for the court were the appropriate aggregate sentence, the imposition of a non-parole period, and the consideration of the appellant's subjective circumstances, including his advanced age, chronic health issues, and vulnerability in custody.

In addressing the appeal, the court noted that the original sentence was manifestly excessive. The court emphasised the need to consider the totality of the offences and to avoid imposing a crushing sentence. It was also necessary to take into account the appellant's chronic health issues, advanced age, and mobility issues, which made him particularly vulnerable in custody. The court observed that the District Court had not adequately considered these factors and had placed undue emphasis on the seriousness of the offences.

The Supreme Court remitted the matter back to the District Court to re-sentence the appellant. The court indicated that the appropriate sentence for the offences should be an aggregate of 8 years and 9 months with a non-parole period of 5 years and 3 months. The court provided detailed reasons for its decision, emphasising the need to balance the need for punishment and deterrence with the appellant's subjective circumstances.

In accordance with the remit, the District Court imposed the indicated sentence of imprisonment of 9 months on count 11, and an aggregate sentence of imprisonment of 8 years and 9 months with a non-parole period of 5 years and 3 months.

Orders

Orders of the court

Resentence according to Court of Criminal Appeal remit

Count 11 – Indicated sentence of imprisonment of 9 months

Aggregate sentence of imprisonment of 8 years 9 months with a non-parole period of 5 years 3 months

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 MacDonald (No 2) [2025] NSWDC 181
Hearing dates:	4 April 2025
Date of orders:	4 April 2025
Decision date:	04 April 2025
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Resentence according to Court of Criminal Appeal remit Count 11 – Indicated sentence of imprisonment of 9 months Aggregate sentence of imprisonment of 8 years 9 months with a non-parole period of 5 years 3 months
Catchwords:	CRIME — Historic child sex offences — Assault and act of indecency of a girl CRIME — Appeal and review — Appeal District Court to Supreme Court — Matter remitted to District Court for resentence RESENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Multiple offences — Totality — Not impose a crushing sentence SENTENCING — Subjective considerations on sentence — Chronic health issues — Advanced age — Mobility issues — Vulnerable in custody
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW)
Cases Cited:	MacDonald v R [2024] NSWCCA 240 R v MacDonald [2024] [2024] NSWDC 136
Category:	Sentence
Parties:	Kenneth MacDonald (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: R Steward (for the offender) N Keay (for the Crown) Solicitors: Kells Your Lawyers (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/113474
Publication restriction:	Statutory non-publication applies in relation to the names of the complainants.