R v Macquarie (a pseudonym) - [2019] NSWDC 763

District Court

New South Wales

Medium Neutral Citation: R v Macquarie (a pseudonym) [2019] NSWDC 763
Hearing dates: 26 July 2019
Decision date: 29 July 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Term of imprisonment of 3 years with a non parole period of 18 months.

Catchwords: CRIME - SENTENCE - doing an act with the intention of perverting the course of justice.
Legislation Cited: Crimes Act 1900 (NSW), s319.
Category: Sentence
Parties:
Regina (Crown)
Macquarie (a pseudonym) (offender)
Representation:
Ms Sponza (ODPP)
Mr Hoare (Counsel for the offender)

File Number(s): 2018/89924
Publication restriction: Non publication of the names of the offender, "the accused", Ms X or the child Shirley - or anything that might identify any of them, directly or indirectly.

judgment

Mr Macquarie, you appear for sentence today in relation to one offence, that is, doing an act with the intention of perverting the course of justice.
This involves a contravention of s 319 of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years' imprisonment. There is no standard non-parole period.
The facts surrounding your offending are contained in a statement of agreed facts. Slightly recast by me, as to style but not substance, they are as follows.
You are the stepfather of an accused man ("the accused"). The accused was previously married to Ms X (a pseudonym). The accused and Ms X are now divorced.
Whilst the accused was married to Ms X, a seven year old girl came to live as part of their family. Her name was Shirley (a pseudonym). Ms X was Shirley's aunt.
After the accused and Ms X separated, Shirley continued to live with Ms X.
On 18 September 2017, the accused was charged with 18 alleged sexual assaults against Shirley.
In the category of criminal offending, Mr Macquarie, there can be little to rival the seriousness of sexually offending against children.
The accused has pleaded not guilty to those 18 charges. He is entitled to have a trial in accordance with law - and Shirley is entitled to freely participate in that process as well.
The accused's trial was due to commence in this registry today, but has been stood over to tomorrow for reasons that are not relevant to this sentencing exercise.
In the lead-up to that trial, Mr Macquarie, the accused's legal advisers were provided, as is required, with the Crown's brief of evidence. Somehow, you obtained access to that brief of evidence.
You therefore knew that not only was Shirley to be a witness in the accused's trial, but that Ms X was also to be a witness. At this stage, I know nothing of the Crown's case against the accused, or what the defence case might be.
It does seem to me, however, that you might have been a potential defence witness. There are matters of concern as to how you obtained access to the Crown brief, but that is not something I need to further address today. It certainly will…

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 Macquarie (a pseudonym)

Details

AGLC: R v Macquarie (a pseudonym) [2019] NSWDC 763
Case: [2019] NSWDC 763
Decision Date: 29 July 2019

CaseChat Overview and Summary

The respondent, Macquarie, was found guilty of committing an act with the intention of perverting the course of justice. This conviction followed an incident in which Macquarie interfered with the evidence in a criminal proceeding, thereby obstructing justice. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the trial judge had correctly exercised her discretion in sentencing Macquarie. The respondent argued that the sentence was excessive, contending that the trial judge had failed to adequately consider mitigating factors and had not correctly weighed the gravity of the offence against the need for deterrence. The Crown, on the other hand, submitted that the sentence was appropriate given the seriousness of the offence and the need to uphold public confidence in the justice system.

In delivering its judgment, the Court noted that the offence of perverting the course of justice was serious and undermined public confidence in the administration of justice. The Court found that the trial judge had appropriately considered the relevant principles and factors in sentencing, including the gravity of the offence, the need for deterrence, and the personal circumstances of the respondent. The Court rejected the argument that the sentence was excessive, holding that the term of imprisonment and the non-parole period imposed by the trial judge was appropriate in the circumstances.

The Court dismissed the appeal and affirmed the sentence imposed by the trial judge. Macquarie was sentenced to a term of imprisonment of three years with a non-parole period of 18 months.

Orders

Orders of the court

Term of imprisonment of 3 years with a non parole period of 18 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Macquarie (a pseudonym) [2019] NSWDC 763
Hearing dates:	26 July 2019
Decision date:	29 July 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 3 years with a non parole period of 18 months.
Catchwords:	CRIME - SENTENCE - doing an act with the intention of perverting the course of justice.
Legislation Cited:	Crimes Act 1900 (NSW), s319.
Category:	Sentence
Parties:	Regina (Crown) Macquarie (a pseudonym) (offender)
Representation:	Ms Sponza (ODPP) Mr Hoare (Counsel for the offender)
File Number(s):	2018/89924
Publication restriction:	Non publication of the names of the offender, "the accused", Ms X or the child Shirley - or anything that might identify any of them, directly or indirectly.