NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v McVittie [2002] NSWCCA 344
FILE NUMBER(S):
60355/02
HEARING DATE(S): 13 August 2002
JUDGMENT DATE: 13/08/2002
PARTIES:
R v Leslie John McVittie
JUDGMENT OF: Giles JA Wood CJ at CL Levine J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 01/21/0177
LOWER COURT JUDICIAL OFFICER: Williams DCJ
COUNSEL:
E Wilkins - Crown/appellant
M Paish - Respondent
SOLICITORS:
S E O'Connor - Crown/Appellant
D J Humphreys - Respondent
CATCHWORDS:
Crown appeal - over 3 months conducted business of supplying methylamphetamine and cannabis leaf - was on parole for previous drug offence - sentence 3 years imprisonment and 2 years non-parole period - order for periodic detention - effective sentence of 15 months imprisonment, 7 months period detention and 12 months parole - query whether could order partial periodic detention - sentence manifestly lenient - particular errors in seeing self-interest as contrition and giving credit of 2 months imprisonment for a reporting condtion while on bail - substituted sentence 3 years 6 months full-time custody with non-parole period 2 years 4 months.
LEGISLATION CITED:
DECISION:
Appeal upheld. Sentence varied to imprisonment for 3 years and 6 months to commence on 5 January 2001 and to expire on 4 July 2004. Non-parole period 2 years 4 months to commence on 5 January 2001 and to expire on 4 May 2003. 5 May 2003 specified as the earliest date on which the respondent may be released on parole.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 60355/02
DC 01/21/0177GILES JA
WOOD CJ at CL
LEVINE JTuesday 13 August 2002
R v McVITTIE
Judgment
GILES JA: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912, against a sentence imposed on the respondent by Williams DCJ on 5 June 2002.
The sentence
The respondent pleaded guilty to the charge that between 7 October 1999 and 9 December 1999 at Glendenning and other places in New South Wales he supplied a prohibited drug, namely methylamphetamine. The offence is found in s 25(1) of the Drug Misuse and Trafficking Act 1985 (“the Drug Act”), and by s 32(1)(g) of that Act carries a maximum penalty of 15 years’ imprisonment and/or a fine of $220,000. The respondent asked that there be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”) the further offence that between 7 October 1999 and 9 December 1999 at Glendenning and other places he supplied a prohibited drug, namely, cannabis leaf. By s 32(1)(h) of the Drug Act that offence carries a maximum penalty of imprisonment for ten years and/or a fine of $220,000.
The respondent was arrested on 9 December 1999. Bail was refused, and he was in custody for nearly 15 months, (14 months, 3 weeks and 1 day to be precise), until he obtained bail on 23 February 2001. The conditions of bail included that he report…
Continue reading R v McVittie
Sign in free to access the full text
- AGLC
- R v McVittie [2002] NSWCCA 344
- Case
- [2002] NSWCCA 344
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was whether the sentence imposed by the trial judge was manifestly inadequate. The court examined the trial judge's reasoning and the factors considered in determining the sentence. The appeal court found that the trial judge had erred in considering McVittie's self-interest as contrition, noting that McVittie had not expressed regret for the harm caused to the community by his drug dealing activities. The court also highlighted the trial judge's error in giving credit for a reporting condition while on bail, which the Crown argued had contributed to the excessive leniency of the sentence. The appeal court concluded that the sentence was indeed manifestly inadequate and substituted a sentence of three years and six months full-time custody, with a non-parole period of two years and four months.
The appeal court found that the trial judge had misapplied the concept of contrition by considering McVittie's expressed determination to live an honest life as evidence of genuine remorse. The court emphasised that true contrition involves expressing regret for the harm caused by the criminal conduct, which McVittie had failed to do. Additionally, the court disagreed with the trial judge's decision to credit McVittie for a reporting condition while on bail, as this was not a proper basis for reducing the sentence. The court's substitution of a harsher sentence reflected its view that the original sentence did not adequately reflect the gravity of McVittie's offences, particularly given that they were committed while he was on parole. The final orders of the court were that McVittie would serve three years and six months in full-time custody, with a non-parole period of two years and four months.
Orders
Orders of the court
Full text does not contain this section.
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
Established by: WOOD CJ
The sentence of 3 years imprisonment was then stated, and his Honour went on to find special circumstances, to set the non-parole period of 2 years, and to date the sentence from 6 January 2001 and direct that the balance of the non-parole period be served by way of periodic detention.Consideration In the result, the respondent was effectively subjected to full time custody for 15 months, periodic detention for 7 months, and parole for 12 months. The Crown’s principal submission was that the sentence viewed as a whole was manifestly inadequate, although the Crown pointed to particular respects in which it said that there was error which may have led to or contributed to the excessive leniency. In my opinion that submission should be accepted. The two errors which in my opinion probably most contributed to the excessive leniency were these. His Honour observed that it could probably not be said that the plea of guilty was entered into at the earliest opportunity, and that was clearly so. His Honour correctly accepted that there was nonetheless utilitarian value in saving a lengthy trial. His Honour referred also to contrition. In my view the so-called contrition was in truth not contrition. As his Honour said, there was no doubt that the Crown case was quite strong. There was no expression of regret for the harm to the community from the business of selling methylamphetamine and cannabis leaf. The effect of the respondent’s evidence was that he was determined not to offend again and that, having suffered heart attacks, he wished to live an honest life with his children and grandchildren for such time as he could. This and the rehabilitation which his Honour saw in it were not truly contrition, but were rather, self-interest. It was submitted on the respondent’s behalf that his evidence showed remorse for what the respondent had done in the past, and that it showed it because his change in lifestyle and determination to lead an honest life showed that he was contrite for what he had done in the past. I think it fell well short of contrition in relation to the offence for which he was charged and the offence to be taken into account. On the respondent’s behalf the same evidence was relied on in another way. It was said that the respondent was at a crossroads in his life, and that his Honour accepted that he had chosen a path of honesty and gave him subjective credit for that choice (I put it in my own words, but I think I have captured the essence of the submission). There is some support for that in his Honour’s reasons. He said this:“Mr McVittie gave evidence before me and I was relatively impressed by him. Over the last ten years he spent most of his time in custody. As I said, he is aged 51. It may well be that at this point in time he has reached a point in his life where he realises that if he does not change he will basically probably die in prison, which cannot be a very comforting thought to anyone.” It seems to me that some regard may be paid to this, but it must be remembered firstly, that the respondent had earlier offended and been sentenced to terms of imprisonment for drug offences and, secondly, that the respondent had committed the offences presently in question whilst on parole. Nonetheless I do not think that the so-called contrition properly viewed and the utilitarian value of the plea warranted the reduction of his Honour’s initial 4 years to 3 years. In my opinion, even allowing for the respondent’s health and expressed determination to mend his ways – a determination which, it should be said, he had also expressed in relation to the July 1996 offence – the gravity of the offences and the fact that they were committed whilst on parole and for commercial gain did not permit anything less than a period of imprisonment of 4 years after recognition of the utilitarian value of the plea. I have referred to the circumstance of the commission of the offences on parole, and as to parole it should be stressed that parole is a privilege and abuse of the privilege is a significant aggravating circumstance.