Citation: R v MacGregor [2017] NSWDC 249
Court: District Court of New South Wales
Date: 3 August 2017
Judge: Neilson DCJ
Background
The offender, a 42-year-old man with a significant drug-related criminal history, pleaded guilty to three charges arising from events on 25 May 2015 at Camperdown. The primary charges were knowingly taking part in the manufacture of methylamphetamine and knowingly taking part in its supply (25 grams). A third charge arose after the offender attempted to flee following his arrest, leading to a short pursuit and physical struggle with police before he was subdued.
The offender had two prior episodes of serious drug offending. In 1999, he was convicted of collecting a large shipment of ecstasy from an international courier and sentenced to eight years imprisonment (reduced on appeal from nine years). After release, he was later convicted of conspiring to manufacture a commercial quantity of methylamphetamine at his own premises, receiving a sentence of four years and nine months. The present offending occurred after he was released on parole from that second sentence.
The offender had grown up on Sydney's North Shore, experienced family disruption from his parents' separation at age 13, completed his HSC, and worked in the advertising industry during non-custodial periods. He had a long history of substance use beginning in adolescence, progressing from alcohol and cannabis to ecstasy, and ultimately to methylamphetamine following his first release from prison.
Legal Issues
- What sentence was appropriate for a third episode of serious drug offending, given the offender's history and the objective seriousness of the current charges?
- What weight, if any, should be given to evidence of rehabilitation and positive conduct during pre-sentence custody?
- Whether special circumstances existed to justify a longer than usual ratio of parole period to non-parole period (that is, a balance of sentence exceeding one third of the total term).
- What effect the significant delay in sentencing, caused without the offender's fault, should have on the sentence imposed.
- How to treat the resistance to arrest charge relative to the principal drug offences.
Decision
Neilson DCJ assessed the objective seriousness of the manufacturing and supply charges as falling within the mid-range, noting that 25 grams of methylamphetamine represented an indictable quantity and that the offender was a knowing participant in a commercial operation. The resistance to arrest offence was placed at the bottom of the range for that type of offending, with no police officers injured and no assault charge laid.
The court examined the offender's background in detail, including evidence from psychologist Ms Megan Godbee. His Honour acknowledged that the offender's difficult adolescence, parental separation, and escalating substance dependence provided some contextual explanation for his trajectory, but that these factors carried diminished weight given the persistent, serious nature of the drug offending across nearly two decades.
Notwithstanding the offender's history, the court found that evidence of positive conduct during pre-sentence custody, including participation in programs and evidence of genuine steps toward rehabilitation, warranted recognition. His Honour also took into account the substantial delay of more than 16 months between the offender's committal for sentence and the eventual sentence date, a delay caused by the late production of the pre-sentence report and not attributable to the offender's default.
Special circumstances were found to exist, justifying a non-parole period that was proportionally shorter than the standard one-third minimum, to allow for an extended period of supervision on parole. The court also took into account two additional matters listed on a Form 1 (that is, further offences not separately charged but considered at sentencing).
Orders Made
- Manufacturing charge: Convicted; sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing 25 May 2015 and expiring 24 November 2017, plus a balance of term of 2 years expiring 24 November 2019 (total sentence: 4 years and 6 months).
- Supply charge: Convicted; sentenced concurrently with the manufacturing charge (as above); two Form 1 matters taken into account.
- Resisting arrest charge: Convicted; sentenced to a fixed term of 1 month commencing 25 May 2015, wholly concurrent with the principal sentences.
- Sequence 6 withdrawn and dismissed.
- Exhibit 2 sealed, not to be opened except by the Court of Criminal Appeal or by further order of the Court.
Key Takeaways
- Significant criminal history, including two prior sentences for serious drug offences, does not automatically displace all mitigating considerations; the District Court still weighed rehabilitation evidence and pre-sentence conduct individually.
- Special circumstances can be found where a history of institutionalisation and the need for structured post-release supervision justify extending the balance of sentence beyond the standard one-third ratio.
- Delay in sentencing caused by administrative failure (in this case, a late pre-sentence report), and not by the offender's own conduct, is a recognised factor that courts take into account in mitigation.
- Under the Drug Misuse and Trafficking Act 1985, both manufacturing and supply of an indictable quantity of methylamphetamine carry maximum penalties of 15 years imprisonment, and a 25-gram quantity places the offence within the indictable band.
- Where resistance to arrest involves no injury to police and no assault charge, a sentencing court may treat that offence as sitting at the lowest end of the objective seriousness range, warranting a short concurrent term.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 25(1)
- Crimes Act 1900 (NSW), s 58
Cases:
- R v MacGregor [2000] NSWCCA 552 (Court of Criminal Appeal, reducing the offender's first sentence from nine to eight years)