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Court of Criminal Appeal 13 May 2013

R v MacLeod

[2013] NSWCCA 108

DrugsPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCING CROWN APPEAL HARDSHIP TO THIRD PARTIES WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v MacLeod [2013] NSWCCA 108
Court: Court of Criminal Appeal, New South Wales
Date: 13 May 2013
Judge(s): Simpson J (principal judgment); Harrison J and Bellew J (both agreeing)

Background

The respondent was a businessman from the Coffs Harbour area who operated furniture stores and part-owned a gymnasium. He was charged on indictment with making a collusive agreement with a NSW Police detective, contrary to s 200(2)(b) of the Police Act 1990. The detective had offered to alert the respondent whenever he appeared "under notice" in police intelligence systems, and the respondent accepted that offer. The detective subsequently accessed the COPS police database on multiple occasions and communicated with the respondent around those same times.

After a contested jury trial resulted in a guilty verdict, the respondent also asked the sentencing court to take into account nine further offences of possessing restricted substances under the Poisons and Therapeutic Substances Act 1966. On 14 November 2012, the sentencing judge imposed nine months' imprisonment but suspended the entire sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912, arguing that the suspension was not justified. The Crown did not seek an increase in the nine-month term itself, only the removal of the suspension.

  • Whether the sentencing judge erred in suspending the sentence, specifically whether "exceptional circumstances" within the meaning of R v Edwards (1996) 90 A Crim R 510 were established
  • Whether the sentencing judge's finding that the detective co-offender did not pass on information to the respondent was reasonably open on the evidence
  • Whether hardship to third parties (including employees and family members) could constitute the necessary exceptional circumstances
  • Whether the nine-month sentence was manifestly inadequate

Decision

On the collusive agreement and factual findings: The sentencing judge found that the conversation on 5 May 2011 constituted the making of a collusive agreement, with the detective offering access to confidential police intelligence and the respondent accepting. The Court of Criminal Appeal accepted that it was open to the sentencing judge to find, on the balance of possibilities, that the detective had not in fact passed on intelligence to the respondent, notwithstanding the circumstantial evidence of timing between database access and the pair's communications.

On suspension and the Edwards principle: The Court confirmed that a suspended sentence under s 12 of the Sentencing Procedure Act requires "exceptional circumstances," as established in R v Edwards. The sentencing judge had relied upon the respondent's personal circumstances, including the potential impact on his 12 employees, his family, and his businesses, as justifying suspension. The Court of Criminal Appeal found that these factors did not meet the threshold. Hardship to third parties, while a relevant consideration, did not rise to the level of exceptional circumstances in this case.

On manifest inadequacy: The Crown accepted that, given parity considerations arising from the co-offender detective's sentence of two years' imprisonment (with a non-parole period of one year), it could not realistically seek an increase in the nine-month term. Simpson J observed that, absent that constraint, she could readily have been persuaded the term itself was manifestly inadequate for the criminality involved. The Court explicitly stated that the nine-month sentence should not be treated as any kind of benchmark for offences of this nature.

Re-sentencing: The Court quashed the original sentence and re-sentenced the respondent to nine months' imprisonment with a non-parole period of six months and three weeks, with no suspension.

Orders Made

  • Crown appeal allowed
  • Sentence imposed on the respondent quashed
  • Respondent re-sentenced to imprisonment for nine months, commencing 13 May 2013 and expiring 12 February 2014, with a non-parole period of six months and three weeks expiring 3 December 2013
  • Direction that the respondent be released at the expiration of the non-parole period

Key Takeaways

  • Offences under s 200 of the Police Act 1990 (collusive agreements with police) are characterised as serious, carrying a maximum of seven years' imprisonment. The Court of Criminal Appeal emphasised that such conduct threatens the integrity of the administration of justice, may endanger police sources, and can jeopardise important investigations.
  • Under the R v Edwards principle, suspending a sentence of imprisonment requires "exceptional circumstances." Potential hardship to employees and family members, while a legitimate sentencing consideration, did not satisfy that threshold on the facts of this case.
  • A sentencing judge who finds facts after a contested trial must ensure those findings are not inconsistent with the jury's verdict, though the precise factual findings as to what occurred within an agreed framework remain the judge's responsibility.
  • Parity between co-offenders remains a significant constraint in Crown appeals: where the Crown accepts that an increase in a term would be inappropriate given the co-offender's sentence, the Court of Criminal Appeal will not increase the term of its own motion if the respondent has had no opportunity to be heard on that question.
  • The nine-month sentence imposed on re-sentencing was expressly not endorsed as a sentencing benchmark for s 200 Police Act offences. The Court noted a dearth of judicial authority on appropriate sentences for such offences.

Legislation and Cases Referenced

Legislation:
- Police Act 1990 (NSW), s 200(2)(b)
- Poisons and Therapeutic Substances Act 1966 (NSW), s 16(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, Pt 3 Div 3
- Criminal Appeal Act 1912 (NSW), s 5D
- Privacy and Personal Information Protection Act 1998 (NSW)

Cases:
- R v Edwards (1996) 90 A Crim R 510 (exceptional circumstances for suspended sentences)
- 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 Kertebani [2010] NSWCCA 221
- Sinkovich v R [2011] NSWCCA 90
- Waugh v R [2010] NSWCCA 3