R v McCauley; R v Johnston - [2017] ACTSC 84

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McCauley; R v Johnston
Citation:	[2017] ACTSC 84
Hearing Dates:	2 February 2017
DecisionDate:	8 March 2017
Before:	Penfold J
Decision:	See [97] – [108].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – importing a marketable quantity of a border-controlled drug – arranging for cocaine to be sent to Australia from Thailand – no suggestion of a professional or organised importation scheme – police intercept of phone communication – application for sentencing judge to go beyond findings implicit in jury verdicts– scope for taking account of other facts adverse to the accused – scope for taking into account facts favouring accused – availability of intensive correction orders – intensive correction orders involve significant degree of leniency – intensive correction orders provide incentive to rehabilitation – scope for Crown submissions about disposition of a sentence after Barbaro principles.
Legislation Cited:	Crimes Act 1914 (Cth), ss 19AB(3), 19AB(4), 20AB91AA)(a)(ix) Criminal Code 1995 (Cth), ss 307.2(1), 307.2(3), 307.4 Crimes (Sentencing) Act 2005 (ACT), s 11(3)
Cases Cited:	Adegoke v R [2013] NSWCCA 193; 234 A Crim R 280 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Chong v R [2011] NSWCCA 182 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 56; 90 ALJR 113 Di Tommaso v The Queen [2010] VSCA 178 Harris (a Pseudonym) v The Queen [2016] VSCA 30 Manyathela v The Queen [2015] ACTCA 13 Ojielumhen v The Queen [2014] ACTCA 28 Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556 R v Cahill [2015] NSWCCA 53 R v Karan [2013] NSWCCA 53 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Onuorah [2009] NSWCCA 238; 76 NSWLR 1 R v Sutton [2013] QCA 151 Starmer v Regina [2008] NSWCCA 27 The Queen v Pham [2015] HCA 39; 256 CLR 550
Parties:	The Queen (Crown) Paul McCauley (First offender) Christopher Johnston (Second offender)
Representation:	Counsel Mr E Chen (Crown) Mr J Lawton (First offender) Mr S Whybrow (Second offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (First offender) Sharman Roberston (Second offender)
File Number:	SCC 147 of 2015; SCC 33 of 2016

The offence

Christopher Johnston and Paul McCauley have each been found guilty by a jury of one offence of importing a marketable quantity of a border-controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code 1995 (Cth), an offence carrying a maximum penalty including imprisonment for 25 years.

The incident

The offences came to light in November 2014. Several months earlier, during a visit to Thailand, Mr Johnston had met a man, Victor, who offered to arrange for cocaine to be sent to Mr Johnston in Australia. Mr Johnston was a user…

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.

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Details

Case: [2017] ACTSC 84
Decision Date: 8 March 2017

CaseChat Overview and Summary

The appellants, McCauley and Johnston, were convicted for their involvement in the importation of a marketable quantity of a border-controlled drug, specifically cocaine, into Australia. Their convictions were brought before the court for sentencing considerations, with the appellants seeking a departure from the findings implicit in their jury verdicts. The case was heard in a court of criminal jurisdiction in Australia, where the appellants' sentences were under review.

The primary legal issues before the court involved the scope for the sentencing judge to consider facts beyond those found by the jury, the potential for imposing an intensive correction order, and the appropriate application of the principles established in Barbaro to the sentencing process. The appellants argued for a leniency in sentencing, citing the absence of any suggestion of a professional or organised importation scheme and the interception of their phone communications by police. The Crown, on the other hand, advocated for a harsher sentence, highlighting the gravity of the drug offences committed.

In its reasoning, the court acknowledged the appellants' arguments for leniency, recognising the lack of evidence pointing to an organised drug importation scheme and the interception of their communications. However, the court also noted the serious nature of the offences and the need for deterrence. The court held that while there was scope for the sentencing judge to consider other facts adverse to the accused, there was also room for taking into account facts favouring the accused. The court further found that intensive correction orders were an appropriate consideration given the significant degree of leniency they involve and their potential to encourage rehabilitation. The court concluded that the Crown's submissions about the disposition of a sentence after the Barbaro principles were relevant and should be taken into account in determining the final sentence.

The final orders, as detailed in the judgment, specified the sentencing outcomes for the appellants, taking into consideration all the aforementioned factors. The court ordered that the appellants be subject to intensive correction orders, which were seen as a balanced approach considering both the need for punishment and the potential for rehabilitation. The orders reflected the court's careful deliberation on the appropriate sentence that balanced the gravity of the offences with the mitigating circumstances presented by the appellants.

Orders

Orders of the court

See [97] – [108].

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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