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R v MacLeod

R v MacLeod

Case [2013] NSWCCA 108 13 May 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v MacLeod [2013] NSWCCA 108
Hearing dates: 9 April 2013
Decision date: 13 May 2013
Before: Simpson J at [1]; Harrison J at [66]; Bellew J at [67]
Decision:
(i) Crown appeal allowed;
(ii) The sentence imposed on the respondent be quashed;
(iii) In lieu thereof the respondent be sentenced to imprisonment for 9 months, commencing on 13 May 2013 and expiring on 12 February 2014, with a non-parole period of 6 months and 3 weeks expiring on 3 December 2013.
(iv) Direct that the respondent be released at the expiration of the non-parole period.

Catchwords: CRIMINAL LAW - appeal - sentencing - Crown appeal - respondent convicted after trial of offence contrary to s 200 of the Police Act 1990 - nine further offences contrary to s 16(1) of the Poisons and Therapeutic Substances Act 1966 taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred by suspending sentence - hardship to third parties - whether reasonably open to sentencing judge to find that co-offender did not pass on information to respondent - whether sentence manifestly inadequate - no exceptional circumstances within R v Edwards (1996) 90 A Crim R 510 principle - appeal allowed - sentence quashed - respondent re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Poisons and Therapeutic Substances Act 1966
Police Act 1990
Privacy and Personal Information Protection Act 1998
Cases Cited: Bangaru v R [2012] NSWCCA 204
Dipangkear v R [2010] NSWCCA 156
Elmir v R [2009] NSWCCA 22
Flick v R [2012] NSWCCA 170
FP v R [2012] NSWCCA 182
Hay v R [2013] NSWCCA 22
Hopley v R [2008] NSWCCA 105
Ihemeje v R [2012] NSWCCA 269
King v R [2010] NSWCCA 202
McCraw v R [2011] NSWCCA 162
R v Edwards (1996) 90 A Crim R 510
R v Kertebani [2010] NSWCCA 221
Sinkovich v R [2011] NSWCCA 90
Waugh v R [2010] NSWCCA 3
Category: Principal judgment
Parties: Regina (Applicant)
Andrew Michael MacLeod (Respondent)
Representation: Counsel:
J Pickering SC (Applicant)
A J Kimmins (Respondent)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Applicant)
Moloney MacCallum Lawyers (Respondent)

File Number(s): 2011/187436
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-11-14 00:00:00

Before:

Phegan ADCJ

File Number(s):

2011/187436

Judgment

SIMPSON J: In September 2012 the respondent was charged on indictment in the District Court in Sydney with a single of count of making a collusive agreement with a member of the NSW Police Force for the purpose of improperly taking advantage of the member's position. He entered a plea of not guilty. After a trial, the jury returned a verdict of guilty. On sentence, the respondent asked that a further nine offences (of possession of restricted substances, contrary to s 16(1) of the Poisons and Therapeutic Substances Act 1966) identified on a Form 1 be taken into account pursuant to Pt 3 Div…

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 MacLeod

Details

AGLC: R v MacLeod [2013] NSWCCA 108
Case: [2013] NSWCCA 108
Decision Date: 13 May 2013

CaseChat Overview and Summary

The case of R v MacLeod involved the respondent who was convicted of an offence contrary to section 200 of the Police Act 1990. Additionally, the court took into account nine further offences contrary to section 16(1) of the Poisons and Therapeutic Substances Act 1966. The Crown appealed the sentencing decision, arguing that the sentence was inadequate. The court was required to decide whether the sentencing judge erred in suspending the sentence, the impact of hardship on third parties, and whether it was reasonably open to the sentencing judge to find that the co-offender did not pass on information to the respondent. Furthermore, the court needed to assess whether the sentence was manifestly inadequate and if there were any exceptional circumstances that warranted a departure from the established principles.

The court found that the sentencing judge erred in suspending the sentence. The court held that the hardship to third parties was not a sufficient reason to suspend the sentence, as it did not constitute an exceptional circumstance under the R v Edwards principle. Additionally, the court found that it was not reasonably open to the sentencing judge to conclude that the co-offender did not pass on information to the respondent, as there was insufficient evidence to support such a finding. The court further held that the sentence was manifestly inadequate, as it did not reflect the seriousness of the offences committed. Consequently, the appeal was allowed, the sentence was quashed, and the respondent was re-sentenced.

The court's decision in R v MacLeod highlights the importance of ensuring that sentences are proportionate to the seriousness of the offences committed. The court emphasised that hardship to third parties is not an exceptional circumstance that warrants a departure from the established principles. Additionally, the court underscored the need for the sentencing judge to base their findings on sufficient evidence. The decision also reinforces the importance of ensuring that sentences are not manifestly inadequate, as this would undermine the integrity of the criminal justice system. The final orders of the court were to quash the original sentence and re-sentence the respondent.

Orders