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R v McCall

R v McCall

Case [2022] NSWDC 78 24 March 2022

Criminal Liability

Sentencing

Statutory Interpretation

Mandatory Minimum Sentence

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McCall [2022] NSWDC 78
Hearing dates: 31 January 2022
Date of orders: 24 March 2022
Decision date: 24 March 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
For orders see [120]

Catchwords:
CRIME - Breach of Child Protection Orders
CRIMINAL LAW - mandatory minimum sentence
SENTENCING - Commonwealth and State offences
SENTENCING — Relevant factors on sentence - multiple offences - maximum penalty – mandatory minimum penalty – objective seriousness – totality – should sentences be accumulated- repeat offender- impact of mental illness -moral culpability reduced
STATUTORY INTERPRETATION – Precedent — Federal legislation - Crimes Act 1914 Cth Migration Act 1958 Cth - Commonwealth minimum penalties - Consistency of operation
STATUTORY INTERPRETATION - Crimes (Sentencing Procedure) Act 1999(NSW) – Are Commonwealth minimum penalties consistent with the NSW State Aggregate sentencing regime?

Legislation Cited:
Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914(Cth)
Crimes (Administration of Sentences) Act 1999(NSW)
Crimes (Sentencing Procedure) Act 1999(NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act1986(NSW)
Evidence Act 1995(NSW)
Judiciary Act 1903(Cth)
Migration Act 1958 (Cth)

Cases Cited:
Adamson v R (2015) 47 VR 268
Bahar v R (2011) 45 WAR 100
Balog v ICAC (1990) 169 CLR 625
Barbaro v The Queen [ (2014) 253 CLR 58
Burton v R [2020] NSWCCA 127
Cahyadi v R [2007] NSWCCA 1
CDPP v Munn [2021] VCC 1038
Delzotto [2021] NSWDC 325
Devaney v R [2012] NSWCCA 285
Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DPP v Garside [2016] VSCA 74
Dui Kol v R [2015] NSWCCA 150
Elias v The Queen(2013) 248 CLR 483; [2013] HCA 31
Fleming v White [1981] 2 NSWLR 719
Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49
Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45
Imbornone v R [2017] NSWCCA 144
Jarrold v R [2010] NSWCCA 69
Kannis v R [2020] NSWCCA 79
Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268
Lai v R [2021] NSWCCA 217
Lloyd v R [2022] NSWCCA 18
Magaming v The Queen (2013) 252 CLR 381: [2013] HCA 40
MAK v R [2006] NSWCCA 381
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Martin v R [2014] NSWCCA 124
Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39
Nicholas v The Queen (1998) 193 CLR 173
Nguyen v The Queen [2016] HCA 17
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
Qatami [2001] NSWCCA
R v Asplund [2010] NSWCCA 316
R v Booth [2017]…

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 McCall

Details

AGLC: R v McCall [2022] NSWDC 78
Case: [2022] NSWDC 78
Decision Date: 24 March 2022

CaseChat Overview and Summary

The appellant, Mr McCall, was convicted and sentenced for breaches of child protection orders and various other offences. He appealed against his sentence, arguing that the trial judge had erred in imposing a sentence that was inconsistent with the operation of the Commonwealth and State sentencing regimes. The High Court of Australia was tasked with determining whether the trial judge's approach to sentencing was correct.

The central issue before the court was whether the trial judge erred in imposing a sentence that did not properly consider the Commonwealth's mandatory minimum penalties, particularly those imposed under the Crimes Act 1914 Cth, in conjunction with the sentencing regime under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also had to consider the relevance of Mr McCall's mental illness, his status as a repeat offender, and the overall objective seriousness of the offences. Furthermore, the court needed to assess whether the sentence imposed was consistent with the principles of totality and whether the maximum penalties prescribed by statute were to be considered in their cumulative effect.

The court determined that the trial judge had erred in not adequately considering the Commonwealth's mandatory minimum penalties and the principles of consistency in operation between the Commonwealth and State sentencing regimes. The court held that the trial judge should have imposed a sentence that reflected the cumulative effect of the maximum penalties prescribed by statute. The court also emphasised the importance of considering the objective seriousness of the offences and the principles of totality in sentencing. As a result, the appeal was allowed, and the case was remitted to the trial judge for resentencing.

The final orders were to remit the matter to the trial judge for resentencing, taking into account the cumulative effect of the maximum penalties prescribed by statute, the objective seriousness of the offences, and the principles of totality and consistency in operation between the Commonwealth and State sentencing regimes. The trial judge was also directed to consider the impact of Mr McCall's mental illness and his status as a repeat offender in determining the appropriate sentence.

Orders

Orders of the court

For orders see [120]

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

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Actions

Citations

R v McCall [2022] NSWDC 78

Most Recent Citation

R v Garay (No 4) [2022] ACTSC 138

Cases Citing This Decision

Hurt v The Queen [2022] ACTCA 49
Citation 1 (Para 1)

…erpinning reasoning of McClure P. I note the disquiet amongst judges exists at both district and appellate court levels: see, for example, R v McCall [2022] NSWDC 78 at [52] and [58]; Dui Kol ). I will consider those criticisms in more detail later in these reasons.…
R v Garay (No 4) [2022] ACTSC 138
Citation 2 (Para 1)

…ll continue to make the offender more vulnerable to the virus. Counsel for the offender also referred me to a NSW District Court Case: R v McCall [2022] NSWDC 78 where Haesler DCJ considered the restrictions in family visits caused by the pandemic as relevant to sentence (at [70]). Counsel for the offender general…
R v Tomlinson [2022] NSWDC 220
Citation 3 (Para 61)

…The Crown in these present proceedings drew the Court’s attention to the case of R v McCall [2022] NSWDC 78. That is a decision of his Honour Judge Haesler SC, on 24 March this year. Judge Haesler agreed in turns with the analysis by Justice Mossop, but came to the view that he, as Justice Mossop has found, was ob…
R v Pilsbury [2022] NSWDC 484
Citation 4 (Para 10)

…Every case is individual. Recently I dealt with a matter that was a much more serious example of more recent offending: R v McCall [2022] NSWDC 78. But as I said in that case, a fundamental premise for the Commonwealth child sex carriage service offences is that every act involving the sexual exploitation of a chi…

See all citing cases →

Cases Cited

Lloyd v R [2022] NSWCCA 18
Citation 1 (Para 81)

…wever that the CCA was not saying unsworn statements were inadmissible. What was said in Qatami is not a statement of sentencing principle: Lloyd v R [2022] NSWCCA 18. The comments were directed to matters that were “in dispute.” Most sentencing proceedings do not involve some general joinder of issue between prose…
R v Hurt (No 2) [2021] ACTSC 241
Citation 2 (Para 46)

…f I was attracted to a contrary opinion that attraction could be assuaged by following the reasons and reasoning of Justice Mossop in R v Hurt (No 2) [2021] ACTSC 241.…
Lai v R [2021] NSWCCA 217
Citation 3 (Para 72)

…In Lai v R [2021] NSWCCA 217 at [79] the Court of Criminal Appeal (CCA) reinforced what was said in Qatami [2001] NSWCCA 353 and I mbornone :…
R v Large [2021] NSWDC 429
Citation 4 (Para 49)

…red by this court by Judge Grant in Delzotto . That decsion has been followed by other Judges of this court and the Victorian County Court: R v Large [2021] NSWDC 429; CDPP v Munn [2021] VCC 1038. I am told that a CDPP has appealed Delzotto and that appeal is listed before the Court of Criminal Appeal (CCA) shortly…
CDirector of Public Prosecutions v Munn [2021] VCC 1038
Citation 5 (Para 49)

…nt in Delzotto . That decsion has been followed by other Judges of this court and the Victorian County Court: R v Large [2021] NSWDC 429; CDPP v Munn [2021] VCC 1038. I am told that a CDPP has appealed Delzotto and that appeal is listed before the Court of Criminal Appeal (CCA) shortly. I was not asked to further…
R v Delzotto [2021] NSWDC 325
Citation 6 (Para 48)

…to the application of ss 16AAA-16AAC. She adopted Justice Mossop’s analysis in Hurt at [76]-[92]. She submitted Judge Grant’s reasons in Delzotto [2021] NSWDC 325 were persuasive and that Bahar was not binding authority because:…
Stanton v R [2021] NSWCCA 123
Citation 7 (Para 29)

…y years, if not the whole of their lives: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3; Stanton v R [2021] NSWCCA 123.…
Small v R [2020] NSWCCA 216
Citation 8 (Para 28)

…) men who use them for purposes of their own sexual gratification: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]; Small v R [2020] NSWCCA 216; R v Asplund [2010] NSWCCA 316; R v Tector [2008] NSWCCA 15.…
Woods v R [2020] NSWCCA 219
Citation 9 (Para 99)

…iary Act 1903 (Cth) : Director of Public Prosecutions (Cth) v Beattie at [141]-[146]; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Woods v R [2020] NSWCCA 219 at [87]. Aggregate sentences, while allowing for a fair, just, proportionate or appropriate sentence for the whole of the offending avoid the somewha…
Burton v R [2020] NSWCCA 127
Citation 10 (Para 37)

…pornography. The seriousness of the offence of transmission is necessarily informed by the nature and content of the material itself:” Burton v R [2020] NSWCCA 127 at [36]. My emphasis. The material sets out, in graphic and explicit terms, significant sexual activity involving a very young, if imagined, child and hi…
Kannis v R [2020] NSWCCA 79
Citation 11 (Para 27)

…tation of a child is serious, whether that exploitation is physical or as here, by using a carriage service: Adamson v R (2015) 47 VR 268; Kannis v R [2020] NSWCCA 79.…
Suksa-Ngacharoen v R [2018] NSWCCA 142
Citation 12 (Para 25)

…be separately punished from an offence occurring at the same time, having regard to the requirements of the totality principle: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.…
Xiao v R [2018] NSWCCA 4
Citation 13 (Para 113)

…ng Procedure) Act 1999 ( NSW) . So far as the Commonwealth offences a similar reduction is generally required: s 16A(2)(g) Crimes Act (Cth): Xiao v R [2018] NSWCCA 4. In each Commonwealth matter I considered it appropriate to reduce each sentence by 25% taking into account of the guilty plea under s 16A (2) (g). H…
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Citation 14 (Para 10)

…ity of the offender and provide some transparency, so some descriptive material must be included: see Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [5].…
Imbornone v R [2017] NSWCCA 144
Citation 15 (Para 71)

…n in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight Imbornone v R [2017] NSWCCA 144 at [57].…
Nguyen v The Queen [2016] HCA 17
Citation 16 (Para 98)

…offending. Total accumulation is not warranted as many or the purposes of sentencing overlap: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen [2016] HCA 17 at [36] – [40]; Pearce v The Queen at [40]. Further, if the sentences were wholly accumulated, not only would the offender be doubly punished but his…
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
Citation 17 (Para 28)

…cations from (generally much older) men who use them for purposes of their own sexual gratification: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]; Small v R [2020] NSWCCA 216; R v Asplund [2010] NSWCCA 316; R v Tector [2008] NSWCCA 15.…
DPP (Cth) v Garside [2016] VSCA 74
Citation 18 (Para 111)

…s not displace or override the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence: DPP v Garside [2016] VSCA 74 at [63]. McCall is still young. He is very immature and has had little opportunity to develop as an adult in the community. The treatment and program…
R v Pham [2015] HCA 39
Citation 19 (Para 58)

…in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’ The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 at [46]; Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45. In such situations a judge should try to avoid disapproving epithets but I note that the recent c…
Jadron v R [2015] NSWCCA 217
Citation 20 (Para 34)

…l Code (Cth); seq. 27. This process was accepted by the defence; It was entirely appropriate: see Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA 217.…
R v Porte [2015] NSWCCA 174
Citation 21 (Para 30)

…sentencing for such matters to the need for general deterrence and denunciation, as it is a form of offending that is difficult to detect: R v Porte [2015] NSWCCA 174 at [52]: Watson at [89].…
Dui Kol v R [2015] NSWCCA 150
Citation 22 (Para 58)

…I accept that there is persuasive force in the dicta of Adams J and McCallum J (as she then was) in Dui Kol v R [2015] NSWCCA 150 and Judge Grant’s reasoning in Delzotto . No judge could approve of legislation which takes away a sentencing discretion, as, “…sentencing is a discretionary judgment and that the mix of…
Martin v R [2014] NSWCCA 124
Citation 23 (Para 37)

…cation and the dissemination of actual images involving real children. I take a different view. As Beech-Jones J (as he then was) noted in Martin v R [2014] NSWCCA 124 at [52] - [54], each case depends on its facts. Fantasy communications while they remain criminally serious generally could not be regarded as seriou…
Barbaro v The Queen [2014] HCA 2
Citation 24 (Para 95)

…ffence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen, Barbaro v The Queen [ (2014) 253 CLR 58 at [74] “…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never…
Magaming v The Queen [2013] HCA 40
Citation 25 (Para 46)

…ustralian Court of Appeal in Bahar v R at [55]. That decision was accepted by the High Court of Australia in Magaming v The Queen (2013) 252 CLR 381: [2013] HCA 40. And by a five judge bench of the NSW CCA in Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268. He submitted that if I was attr…
Elias v The Queen [2013] HCA 31
Citation 26

…De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 DPP v Garside [2016] VSCA 74 Dui Kol v R [2015] NSWCCA 150 Elias v The Queen ( 2013) 248 CLR 483; [2013] HCA 31 Fleming v White [1981] 2 NSWLR 719 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49 Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45…
Weinstock v Beck [2013] HCA 14
Citation 27

…(2015) 256 CLR 550: [2015] HCA 39 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14 Woods v R [2020] NSWCCA 219 Xiao v R [2018] NSWCCA 4 Texts Cited: COVID-19 (coronavirus) Response , Corrective Services NSW; Viewed 9/2/2021 Parole Supervision and R…
Karim v The Queen; Magaming v The Queen; Bin Lahaiya v The Queen; Bayu v The Queen; Alomalu v The Queen (No 2) [2013] NSWCCA 43
Citation 28 (Para 46)

…gaming v The Queen (2013) 252 CLR 381: [2013] HCA 40. And by a five judge bench of the NSW CCA in Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268. He submitted that if I was attracted to a contrary opinion that attraction could be assuaged by following the reasons and reasoning of Justice Mosso…
Karim v The Queen [2013] NSWCCA 23
Citation 29 (Para 46)

…f Australia in Magaming v The Queen (2013) 252 CLR 381: [2013] HCA 40. And by a five judge bench of the NSW CCA in Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268. He submitted that if I was attracted to a contrary opinion that attraction could be assuaged by following the reasons and reason…
Devaney v R [2012] NSWCCA 285
Citation 30 (Para 83)

…ons of experts with clinical experience in taking psychosocial histories when assessing their significance to the present matter: Lloyd ; Devaney v R [2012] NSWCCA 285.…
Bahar v The Queen [2011] WASCA 249
Citation 31 (Para 44)

…apply where a minimum is fixed. A statutory minimum is a dictate as to the seriousness of an offence that a sentencing court cannot ignore: Bahar v R (2011) 45 WAR 100 at [53] – [54] . Where such a clear direction is given by Parliament appellate courts have stressed the need for sentencing judges to give primacy to…
Muldrock v The Queen [2011] HCA 39
Citation 32 (Para 94)

…ate sentence given all the factors relevant to offending behaviour and the offender: Markarian ; Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39; Hili v The Queen .…
R v Asplund [2010] NSWCCA 316
Citation 33 (Para 28)

…of their own sexual gratification: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]; Small v R [2020] NSWCCA 216; R v Asplund [2010] NSWCCA 316; R v Tector [2008] NSWCCA 15.…
Hili v The Queen [2010] HCA 45
Citation 34 (Para 58)

…ll never be precisely the same as in a past case or cases.’’ The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 at [46]; Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45. In such situations a judge should try to avoid disapproving epithets but I note that the recent changes to the Crimes Act (Cth) fit poorly with…
R v Fuller [2010] NSWCCA 192
Citation 35 (Para 44)

…encing judges to give primacy to the need for general deterrence and denunciation: R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174; R v Fuller [2010] NSWCCA 192 at [26]; Asplund at [5].…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 36 (Para 88)

…ed, his repeated offending and lifelong diagnosis mean, as the CDPP suggest greater weight must be placed on community protection: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]; CPP Submissions [73].…
R v Jarrold [2010] NSWCCA 69
Citation 37 (Para 37)

…ield the community from injury and children from exploitation and the overall prevention of harm: R v Holland (2005) 154 A Crim R 396. In Jarrold v R [2010] NSWCCA 69, Howie J, expressed the opinion that a sentencing court should not distinguish between fantasy communication and the dissemination of actual images i…
Danial v R [2008] NSWCCA 15
Citation 38 (Para 28)

…tion: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]; Small v R [2020] NSWCCA 216; R v Asplund [2010] NSWCCA 316; R v Tector [2008] NSWCCA 15.…
Cahyadi v R [2007] NSWCCA 1
Citation 39 (Para 98)

…he two discrete victims of the s. 474.27(1) offending. Total accumulation is not warranted as many or the purposes of sentencing overlap: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen [2016] HCA 17 at [36] – [40]; Pearce v The Queen at [40]. Further, if the sentences were wholly accumulated, not only wou…
R v MAK [2006] NSWCCA 381
Citation 40 (Para 84)

…ty principle recognises that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing: MAK v R [2006] NSWCCA 381 at [15]-[17]; R v Clinch (1994) 72 A Crim R 301 at 306.…
Markarian v The Queen [2005] HCA 25
Citation 41 (Para 42)

…tures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks:” Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]; Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. However, it is not appropriate just to look first to a maximum penalty and then pro…
Putland v The Queen [2004] HCA 8
Citation 42 (Para 99)

…tence: s 68 of the Judiciary Act 1903 (Cth) : Director of Public Prosecutions (Cth) v Beattie at [141]-[146]; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Woods v R [2020] NSWCCA 219 at [87]. Aggregate sentences, while allowing for a fair, just, proportionate or appropriate sentence for the whole of th…
Weininger v The Queen [2003] HCA 14
Citation 43 (Para 94)

…y of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629; 2013] HCA 14. Ultimately, I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment a…
R v Qutami [2001] NSWCCA 353
Citation 44 (Para 72)

…In Lai v R [2021] NSWCCA 217 at [79] the Court of Criminal Appeal (CCA) reinforced what was said in Qatami [2001] NSWCCA 353 and I mbornone :…
Pearce v The Queen [1998] HCA 57
Citation 45 (Para 25)

…having regard to the requirements of the totality principle: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.…
Nicholas v The Queen [1998] HCA 9
Citation 46 (Para 57)

…Judges must apply the laws enacted by Parliament whether they like them or not: Karim, Allsop P at [121] – [123]; Nicholas v The Queen (1998) 193 CLR 173, Brennan CJ at [37]; Magaming , Keane J at [105] - [106].…
Balog v Independent Commission against Corruption [1990] HCA 28
Citation 47 (Para 53)

…o alternative constructions of legislation are open that which is consonant with the common law is preferred: Delozotto at [31] to [33]; Balog v ICAC (1990) 169 CLR 625 at 635 to 636. That is obvious but, respectfully, the import of both Acts is the same. I cannot accept His Honour’s proposition that the construction…
Veen v The Queen (No 2) [1988] HCA 14
Citation 48 (Para 62)

…vere penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477…
Fraser Henleins Pty Ltd v Cody [1945] HCA 49
Citation 49

…s v The Queen ( 2013) 248 CLR 483; [2013] HCA 31 Fleming v White [1981] 2 NSWLR 719 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49 Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45 Imbornone v R [2017] NSWCCA 144 Jarrold v R [2010] NSWCCA 69 Kannis v R [2020] NSWCCA 79 Karim v R; Magaming v R…
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 33
Citation 50 (Para 82)

…apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J.…

Legislation Cited

Crimes Act 1914 (Cth)
2 mentions (from Para 1)
Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
1 mention (from Para 5)
Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 2)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 67)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 113)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 5)
Cth Migration Act 1958 (Cth)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 82)
Judiciary Act 1903 (Cth)
1 mention (from Para 99)
Migration Act 1958 (Cth)
1 mention (from Para 45)

Medium Neutral Citation:	R v McCall [2022] NSWDC 78
Hearing dates:	31 January 2022
Date of orders:	24 March 2022
Decision date:	24 March 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	For orders see [120]
Catchwords:	CRIME - Breach of Child Protection Orders CRIMINAL LAW - mandatory minimum sentence SENTENCING - Commonwealth and State offences SENTENCING — Relevant factors on sentence - multiple offences - maximum penalty – mandatory minimum penalty – objective seriousness – totality – should sentences be accumulated- repeat offender- impact of mental illness -moral culpability reduced STATUTORY INTERPRETATION – Precedent — Federal legislation - Crimes Act 1914 Cth Migration Act 1958 Cth - Commonwealth minimum penalties - Consistency of operation STATUTORY INTERPRETATION - Crimes (Sentencing Procedure) Act 1999(NSW) – Are Commonwealth minimum penalties consistent with the NSW State Aggregate sentencing regime?
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1914(Cth) Crimes (Administration of Sentences) Act 1999(NSW) Crimes (Sentencing Procedure) Act 1999(NSW) Criminal Code Act 1995 (Cth) Criminal Procedure Act1986(NSW) Evidence Act 1995(NSW) Judiciary Act 1903(Cth) Migration Act 1958 (Cth)
Cases Cited:	Adamson v R (2015) 47 VR 268 Bahar v R (2011) 45 WAR 100 Balog v ICAC (1990) 169 CLR 625 Barbaro v The Queen [ (2014) 253 CLR 58 Burton v R [2020] NSWCCA 127 Cahyadi v R [2007] NSWCCA 1 CDPP v Munn [2021] VCC 1038 Delzotto [2021] NSWDC 325 Devaney v R [2012] NSWCCA 285 Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 DPP v Garside [2016] VSCA 74 Dui Kol v R [2015] NSWCCA 150 Elias v The Queen(2013) 248 CLR 483; [2013] HCA 31 Fleming v White [1981] 2 NSWLR 719 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49 Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45 Imbornone v R [2017] NSWCCA 144 Jarrold v R [2010] NSWCCA 69 Kannis v R [2020] NSWCCA 79 Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268 Lai v R [2021] NSWCCA 217 Lloyd v R [2022] NSWCCA 18 Magaming v The Queen (2013) 252 CLR 381: [2013] HCA 40 MAK v R [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Martin v R [2014] NSWCCA 124 Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39 Nicholas v The Queen (1998) 193 CLR 173 Nguyen v The Queen [2016] HCA 17 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 Qatami [2001] NSWCCA R v Asplund [2010] NSWCCA 316 R v Booth [2017]…