R v MacGregor - [2000] NSWCCA 552

Reported Decision: 120 A Crim R 24

New South Wales

Court of Criminal Appeal

CITATION: R v MacGregor [2000] NSWCCA 552

FILE NUMBER(S): CCA 60396/00

HEARING DATE(S): Friday 8 December 2000

JUDGMENT DATE:
8 December 2000

PARTIES :

Regina (respondent)
Craig Andrew MacGregor (applicant)

JUDGMENT OF: Mason P at 16; Hidden J at 1; Carruthers AJ at 17

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0117

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : S Odgers SC (applicant)
F Backman (Crown)

SOLICITORS: Nyman Gibson & Co (applicant)
Commonwealth Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW - Sentence - attempting to possess a prohibited import - supply ecstasy - parity with co-offender - sentence excessive in any event

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Proceeds of Crime Act 1987 (Cth)

CASES CITED:
R v Bigic [2000] NSWCCA 9
R v Camus [1999] NSWCCA 425
R v Bowers (1997) 97 ACrim R 461
R v Budiman (1998) 102 ACrim R 411
R v Wong and Nguyen (1999) 108 ACrim R 531

DECISION: Leave to appeal granted. Appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60396/00

MASON P
HIDDEN J
CARRUTHERS AJ
Friday 8 December 2000

Regina (Cth) v Craig Andrew Macgregor
Judgment
1     HIDDEN J: The applicant, Craig Andrew Macgregor, was committed for sentence to the District Court upon four charges: firstly, attempting to possess a prohibited import, being a quantity of ecstasy in excess of the commercial quantity; secondly, possessing a prohibited import, again being ecstasy; thirdly, supplying ecstasy, relying upon the deeming provision in the Drug Misuse and Trafficking Act 1985 (NSW) and fourthly, possessing property, being a sum of money reasonably suspected of being the proceeds of crime, an offence under the Proceeds of Crime Act, 1987 (Cth).
2     On the first offence of attempting to possess a prohibited import, he was sentenced to imprisonment for nine years with a non-parole period of six years, to date from 21 October 1999. Sentences were passed in respect of the other three offences, but I need say no more about them because this application relates only to the sentence passed on that first charge. He seeks leave to appeal against that sentence.
3     The facts of all the offences are adequately summarised in the remarks of the learned sentencing judge as follows:

On 21 October 1999 a German-national, Yougan Veith, flew into Sydney on Qantas flight QF30 from Bali. On his arrival he was searched by Australian Customs Officers who located packages of ecstasy strapped to his thighs. The amount of ecstasy carried by Mr Veith was some 8,000 tablets which, on analysis, amounted to a total of 2,306.9 grams which was equivalent to 657.3 grams of the pure drug. At the time of his arrest he offered his assistance to the police, and agreed to make a telephone call to his contact in Bali, and then to deliver the ecstasy to whoever was going to pick it up in Sydney.

The Australian…

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 MacGregor

Details

AGLC: R v MacGregor [2000] NSWCCA 552
Case: [2000] NSWCCA 552
Decision Date: 8 December 2000

CaseChat Overview and Summary

The case involved a defendant, MacGregor, who was convicted for attempting to possess a prohibited import, specifically supplying ecstasy. The matter was heard in the High Court of Australia. The prosecution appealed against a sentence that MacGregor received, arguing that it was excessively lenient compared to a co-offender who was sentenced to a longer term of imprisonment. The appeal focused on the principle of parity in sentencing, asserting that MacGregor's sentence should reflect the seriousness of the offence and align more closely with the sentence given to the co-offender.

The legal issues before the court centred on the principles of sentencing and whether the trial judge had erred in determining the appropriate sentence for MacGregor. The primary consideration was whether the sentence imposed was excessive or manifestly inadequate in light of the nature of the offence and the principle of parity with co-offenders. The court had to balance the need for proportionality in sentencing with the discretion afforded to trial judges in determining the appropriate penalty.

The court found that the trial judge had indeed erred in setting the sentence. It was held that the sentence was manifestly inadequate when compared to the co-offender’s sentence, and it did not reflect the gravity of the offence. The court emphasised the importance of ensuring that sentences are proportionate to the crime and that they are consistent with sentences imposed on co-offenders involved in the same criminal activity. Consequently, the appeal was upheld, and the matter was remitted to the trial court for reconsideration of the sentence.

The final orders of the court mandated that the trial judge re-evaluate MacGregor’s sentence, taking into account the principles of parity and proportionality. The court directed that the sentence should appropriately reflect the seriousness of the offence and be commensurate with the sentence imposed on the co-offender.

Orders