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R v Macey

R v Macey

Case [2019] NSWDC 664 10 May 2019

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District Court

New South Wales

Medium Neutral Citation: R v Macey [2019] NSWDC 664
Hearing dates: 10 May 2019
Date of orders: 10 May 2019
Decision date: 10 May 2019
Jurisdiction: Criminal
Before: ML Williams SC DCJ
Decision:
An aggregate term of imprisonment of 2 years, 5 months, to be served by way of an intensive corrections order: at [56].

Catchwords: SENTENCING — Mitigating factors — Assistance to law enforcement authorities — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Penalties — Intensive correction orders
SENTENCING — Relevant factors on sentence — Co-offenders — Form 1 offences — General principles — Multiple offences — Objective seriousness — Voluntary disclosure of offence
SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Barlow v The Queen [2008] NSWCCA 96
Baxter
Bott v R [2012] NSWCCA 191
Davis v R [2006] NSWCCA 392
Parente v R [2017] NSWCCA 284
KR v R [2012] NSWCCA 32
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McDowall v R [2019] NSWCCA 29
MO v The Queen [2014] NSWCCA 11
R v Anforth [2003] NSWCCA 222
R v Ball [2013] NSWCCA 126
R v Ball [2013] NSWCCA 126
R v Blackman; Walters [2001] NSWCCA 121
R v Collett (unreported, Court of Criminal Appeal, NSW, Roden J, 7 June 1979)
R v Davis [2004] NSWCCA 310
R v Ellis (1986) 6 NSWLR 603
R v Govinden (1999) 106 A Crim R 314
R v Newell [2004] NSWCCA 183
R v Nichols [2016] NSWDC 389
R v Pullen [2018] NSWCCA 264
R v Smith [1964] Crim L R 70
R v Speechley (2012) 221 A Crim R 175
R v Wilcox (unreported, Supreme Court, NSW, 15 August 1979)
R v Zamagias [2002] NSWCCA 17
Robertson v R [2017] NSWCCA 205
Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605
Yardley v Betts (1979) 22 SASR 108
Texts Cited: NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017
Category: Sentence
Parties:
Regina (Crown)
Reece Macey (Offender)
Representation:
Mr D Bradbury (Crown)
Mr TDF Hughes (Counsel for the offender)

File Number(s): 2018/137180

Judgment

A 21 year old man with a good employment record and no criminal history appears in court here today with the support of his parents facing a very lengthy gaol term for his involvement in a number of matters which occurred in April 2018.
The circumstances lead to Mr Hughes of counsel for the offender conceding that the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 has been surpassed and that a term of imprisonment is required. The difficult debate which has occurred revolves around the question of whether that term of imprisonment should be served by way of full time custody or otherwise.
On 27 April 2018 a man, who was…

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 Macey

Details

AGLC: R v Macey [2019] NSWDC 664
Case: [2019] NSWDC 664
Decision Date: 10 May 2019

CaseChat Overview and Summary

In the case of R v Macey, the defendant was before the court on sentencing following a plea of guilty to multiple offences. The nature of the dispute involved the imposition of an appropriate sentence for the defendant's criminal activities, taking into account various mitigating and aggravating factors. The court had to balance these considerations in light of the legal framework governing sentencing in Australia.

The primary legal issues before the court were the appropriate weight to be given to mitigating factors, such as the defendant's assistance to law enforcement authorities, good character, plea of guilty, and prospects for rehabilitation and remorse. Additionally, the court needed to consider the objective seriousness of the offences, the defendant's age, drug addiction, and the potential for an intensive correction order. The court also considered the need to align the sentence with penalties for similar offences and the general principles of sentencing, including the need to deter and rehabilitate offenders.

The court found that, while the offences were serious, the defendant's early guilty plea, his cooperation with authorities, and his prospects for rehabilitation and remorse were significant mitigating factors. The court also noted the defendant's age and drug addiction as relevant to the sentencing decision. Considering all these factors, the court determined that an intensive correction order was appropriate. This order aimed to address the defendant's underlying issues while also serving the broader objectives of sentencing, such as deterrence and protection of the community. The court imposed an aggregate term of imprisonment of 2 years and 5 months, to be served by way of an intensive corrections order.

Orders

Orders of the court

An aggregate term of imprisonment of 2 years, 5 months, to be served by way of an intensive corrections order: at [56].

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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Citations

R v Macey [2019] NSWDC 664

Cases Citing This Decision

No citing cases yet.

Cases Cited

McDowall v R [2019] NSWCCA 29
Citation 1 (Para 26)

…ess in relation to the demands of the kidnapping charges are at least midrange. As the Courts have recently confirmed in cases such as McDowall v R [2019] NSWCCA 29, it is unnecessary for the Court to characterise an offence in some notional scale, but it is often of assistance. It is more important is to identify…
R v Pullen [2018] NSWCCA 264
Citation 2 (Para 49)

…ting the current approach to the imposition of intensive correction orders, culminating in the relatively recent judgment of Harrison J in R v Pullen [2018] NSWCCA 264. One starts with what was said by the Attorney General in the second reading speech on the amending legislation, pointing out that community supervis…
Parente v R [2017] NSWCCA 284
Citation 3 (Para 33)

…involve a term of full-time custody if there is evidence of substantial supply, a long-time misconception which has now been corrected in Parente v R [2017] NSWCCA 284.…
Robertson v R [2017] NSWCCA 205
Citation 4 (Para 33)

…That was clearly not an expression of general principle in the same manner, as her Honour subsequently pointed out in cases such as Robertson v R [2017] NSWCCA 205 that there is no general principle that drug dealing should involve a term of full-time custody if there is evidence of substantial supply, a long-time m…
R v Nichols, William Ronald [2016] NSWDC 389
Citation 5 (Para 43)

…In R v Nichols [2016] NSWDC 389 Norrish DCJ imposed, after a discount of 45%, a sentence of one year and 11 months, presumably to be served by way of intensive corrections order. The facts were quite shocking and involved a 17 year old victim who was punched in the side of his face, strapped up with duct tape, a ra…
M O v Regina [2014] NSWCCA 11
Citation 6 (Para 45)

…In MO v The Queen [2014] NSWCCA 11 a term of full time custody imposed by the primary judge was quashed by the Court of Criminal Appeal and a one year good behaviour bond imposed. The offender was part of a group who assaulted the victim causing fractures of a nose and facial bruising. The offender had no criminal…
R v Ball [2013] NSWCCA 126
Citation 7 (Para 31)

…ted form of the offence, referring to R v Anforth [2003] NSWCCA 222, R v Speechley (2012) 221 A Crim R 175, Bott v R [2012] NSWCCA 191 and R v Ball [2013] NSWCCA 126. It is necessary for me to deal briefly with those cases and I will so for the purpose of illustrating why, in my view, the conclusion reached by Campb…
Bott v R [2012] NSWCCA 191
Citation 8 (Para 31)

…, particularly for the aggravated form of the offence, referring to R v Anforth [2003] NSWCCA 222, R v Speechley (2012) 221 A Crim R 175, Bott v R [2012] NSWCCA 191 and R v Ball [2013] NSWCCA 126. It is necessary for me to deal briefly with those cases and I will so for the purpose of illustrating why, in my view,…
R v Speechley [2012] NSWCCA 130
Citation 9 (Para 35)

…In R v Speechley (2012) 221 A Crim R 175 the primary judge imposed a one year and 11 months suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999. On appeal by the Crown that was ordered to be served by full-time custody with a 12 month non-parole period. The offender believed that the victim had…
KR v R [2012] NSWCCA 32
Citation 10 (Para 44)

…I bear in mind, as the Court said in KR v R [2012] NSWCCA 32 that the particular culpability of the offender in a joint criminal enterprise here must be taken into account and I have identified the active involvement of this offender.…
Barlow v R [2008] NSWCCA 96
Citation 11 (Para 40)

…In Barlow v The Queen [2008] NSWCCA 96, the offender went to a cousin’s caravan in company with a man in the early hours of the morning. They assaulted and terrorised the victim for two hours. They punched him, hit him, dragged him back on occasions to prevent him from escaping, tortured him, struck him and poked h…
Davis v R [2006] NSWCCA 392
Citation 12 (Para 36)

…en these remarks, at this late stage in the afternoon with further quotations from his Honour’s lengthy judgment. His Honour did refer to Davis v R [2006] NSWCCA 392; being a case of exceptional circumstances involving misguided motives and offending by a person with no prior convictions where cultural mores played…
Markarian v The Queen [2005] HCA 25
Citation 13

…006] NSWCCA 392 Parente v R [2017] NSWCCA 284 KR v R [2012] NSWCCA 32 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McDowall v R [2019] NSWCCA 29 MO v The Queen [2014] NSWCCA 11 R v Anforth [2003] NSWCCA 222 R v Ball [2013] NSWCCA 126 R v Ball [2013] NSWCCA 126 R v Blackman; Walters [2001] NSWCCA 121 R…
R v Davis [2004] NSWCCA 310
Citation 14 (Para 46)

…In R v Davis [2004] NSWCCA 310 a sentence of four years with a nine month non-parole period was overturned and in lieu thereof a good behaviour bond was ordered, noting that the offender had already served nine months. The offending involved three people taking a female to a car, obtaining her belongings from the ho…
R v Newell [2004] NSWCCA 183
Citation 15 (Para 27)

…In R v Newell [2004] NSWCCA 183, Howie J said:…
R v Anforth [2003] NSWCCA 222
Citation 16 (Para 31)

…enerally not be appropriate for offences under s 86 Crimes Act 1900 , particularly for the aggravated form of the offence, referring to R v Anforth [2003] NSWCCA 222, R v Speechley (2012) 221 A Crim R 175, Bott v R [2012] NSWCCA 191 and R v Ball [2013] NSWCCA 126. It is necessary for me to deal briefly with those ca…
R v Zamagias [2002] NSWCCA 17
Citation 17 (Para 41)

…Hall J set out conveniently a two or three stage process for imposition of a sentence under R v Zamagias [2002] NSWCCA 17, which I have read, and note in relation to suspended sentences that they must be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular off…
Wong v The Queen [2001] HCA 64
Citation 18

…reme Court, NSW, 15 August 1979) R v Zamagias [2002] NSWCCA 17 Robertson v R [2017] NSWCCA 205 Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 Yardley v Betts (1979) 22 SASR 108 Texts Cited: NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 Category: Sentence Parties: Regina (Crown) R…
R v Blackman and Walters [2001] NSWCCA 121
Citation 19 (Para 43)

…d. He was then assaulted with a baseball bat. As his Honour pointed out, one needs to bear in mind what the Chief Judge said in R v Blackman; Walters [2001] NSWCCA 121, that one needs to consider all aspects of the interests of society and the offender and the rehabilitation of the offender. As the Chief Justice sai…
Yardley v Betts (1979) 22 SASR 108
Citation 20 (Para 43)

…onsider all aspects of the interests of society and the offender and the rehabilitation of the offender. As the Chief Justice said in Yardley v Betts (1979) 22 SASR 108, the protection of the community is also contributed to by the successful rehabilitation of offenders and this aspect of sentencing should not be los…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 12)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Macey [2019] NSWDC 664
Hearing dates:	10 May 2019
Date of orders:	10 May 2019
Decision date:	10 May 2019
Jurisdiction:	Criminal
Before:	ML Williams SC DCJ
Decision:	An aggregate term of imprisonment of 2 years, 5 months, to be served by way of an intensive corrections order: at [56].
Catchwords:	SENTENCING — Mitigating factors — Assistance to law enforcement authorities — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Co-offenders — Form 1 offences — General principles — Multiple offences — Objective seriousness — Voluntary disclosure of offence SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Barlow v The Queen [2008] NSWCCA 96 Baxter Bott v R [2012] NSWCCA 191 Davis v R [2006] NSWCCA 392 Parente v R [2017] NSWCCA 284 KR v R [2012] NSWCCA 32 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McDowall v R [2019] NSWCCA 29 MO v The Queen [2014] NSWCCA 11 R v Anforth [2003] NSWCCA 222 R v Ball [2013] NSWCCA 126 R v Ball [2013] NSWCCA 126 R v Blackman; Walters [2001] NSWCCA 121 R v Collett (unreported, Court of Criminal Appeal, NSW, Roden J, 7 June 1979) R v Davis [2004] NSWCCA 310 R v Ellis (1986) 6 NSWLR 603 R v Govinden (1999) 106 A Crim R 314 R v Newell [2004] NSWCCA 183 R v Nichols [2016] NSWDC 389 R v Pullen [2018] NSWCCA 264 R v Smith [1964] Crim L R 70 R v Speechley (2012) 221 A Crim R 175 R v Wilcox (unreported, Supreme Court, NSW, 15 August 1979) R v Zamagias [2002] NSWCCA 17 Robertson v R [2017] NSWCCA 205 Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 Yardley v Betts (1979) 22 SASR 108
Texts Cited:	NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017
Category:	Sentence
Parties:	Regina (Crown) Reece Macey (Offender)
Representation:	Mr D Bradbury (Crown) Mr TDF Hughes (Counsel for the offender)
File Number(s):	2018/137180