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District Court 10 May 2019

R v Macey

[2019] NSWDC 664

Assault & violenceDrugsTheft & propertyPublic order & justice offences

Citation: R v Macey [2019] NSWDC 664
Court: District Court of New South Wales
Date: 10 May 2019
Judge: ML Williams SC DCJ

Background

The offender, a 21-year-old electrical apprentice with no prior criminal history, became involved in a serious episode of criminal conduct on 27 April 2018. His co-offender, Tate Phelan, was attempting to recover a $5,000 debt from a victim who allegedly owed him money. The offender was called to the scene, ostensibly to repay a drug debt of his own to Phelan, and arrived in his work van. He claimed initially to be unaware of what was happening to the victim.

The offender's active participation included driving the victim in his van while Phelan made threats to kill, standing over the victim with threatening words, walking him into bushland, and ultimately escorting him to his home and taking alcohol from the premises. The victim was also assaulted by a third participant, Harry Kasirini, causing actual bodily harm. At arrest, the offender was found with cocaine and cash, and he voluntarily disclosed to police that he had been supplying cocaine for approximately six months, with further drugs and cash located at his home.

The sentencing proceeded on the basis that the offender had pleaded guilty to multiple serious offences. The central contested issue was not whether imprisonment was warranted but whether the term should be served in full-time custody or by way of an Intensive Corrections Order (ICO).

  • Whether the threshold for full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 was met (this was conceded by the offender)
  • Whether an Intensive Corrections Order was an appropriate alternative to full-time custody given the objective seriousness of the offending
  • How the sentences for multiple distinct offences, including a Form 1 matter, should be structured and balanced
  • What weight to give the offender's subjective circumstances, including age, absence of criminal history, cooperation with police, voluntary disclosure of further offending, remorse, and addiction

Decision

His Honour accepted that the offender initially arrived on the scene unaware of his co-offenders' intentions and continued his involvement out of a perceived obligation to Phelan. The court nonetheless found that his participation became genuinely active and criminally culpable. The offender's own words to the victim during the incident, combined with his role in driving and supervising the victim, placed him well beyond a passive bystander.

The offender's subjective case was assessed favourably on multiple fronts. His Honour found that the offender gave evidence in a frank, forthright, and honest manner, candidly acknowledging the inconsistencies in his conduct, including the fact that he could have paid Phelan the $700 he owed from the substantial cash he had at home. His voluntary disclosure of drug supply to police, his lack of criminal history, family support, stable employment, demonstrated remorse, and relatively low assessed risk of reoffending all weighed in his favour.

On the question of co-offenders, the court noted the disparity with Phillips, who received a two-year Community Corrections Order in the Local Court for a single demand by force charge. His Honour accepted that Macey's criminality was greater than Phillips's, but still considered the parity principle as part of the sentencing calculus.

Ultimately, his Honour determined that community safety did not require full-time incarceration. Citing R v Pullen [2018] NSWCCA 264 for the proposition that general deterrence and denunciation must be tempered by the paramount consideration of community safety, the court concluded that an ICO with strict conditions, including a one-year curfew, drug abstinence requirements, and psychological treatment, was the appropriate disposition.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences were imposed: 9 months (count 002), 18 months taking into account the Form 1 offence (count 003/005), 12 months (count 006), 9 months (count 008).
  • An aggregate sentence of 2 years and 5 months imprisonment was imposed.
  • Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence was directed to be served by way of an Intensive Corrections Order (ICO) commencing 10 May 2019.
  • Standard ICO conditions applied, including no further offending and supervision by Community Corrective Services.
  • Additional conditions included: a one-year curfew (9pm to 5am) at the offender's residence; psychological treatment as recommended in the report of psychologist Daniel Martin dated 7 May 2019; and abstinence from illicit drugs.
  • A confiscation order was made by consent.

Key Takeaways

  • An ICO remained available even for an aggregate sentence of 2 years and 5 months involving multiple serious offences, including kidnapping-related conduct and drug supply, where the offender's subjective circumstances were particularly strong.
  • Voluntary disclosure of additional offending to police, as occurred here, is a well-established mitigating factor in New South Wales sentencing law, capable of carrying meaningful weight in the final sentence.
  • Under R v Pullen [2018] NSWCCA 264, considerations of general deterrence and denunciation must be balanced against the paramount consideration of community safety when the court assesses whether an ICO is appropriate.
  • A co-offender's lesser sentence, imposed in a lower court on fewer charges, does not automatically constrain sentencing in a higher court, but the parity principle remains a relevant consideration where the offending is on a different scale.
  • Drug addiction was treated as a relevant background circumstance informing the offender's initial involvement in the events, but the court accepted the offender's own position that it did not impair his decision-making so as to significantly reduce his moral culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(3), 99(2), 190C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Barlow v The Queen [2008] NSWCCA 96
- Bott v R [2012] NSWCCA 191
- Davis v R [2006] NSWCCA 392
- KR v R [2012] NSWCCA 32
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McDowall v R [2019] NSWCCA 29
- MO v The Queen [2014] NSWCCA 11
- Parente v R [2017] NSWCCA 284
- R v Anforth [2003] NSWCCA 222
- R v Ball [2013] NSWCCA 126
- R v Blackman; Walters [2001] NSWCCA 121
- R v Collett (unreported, Court of Criminal Appeal, NSW, Roden J, 7 June 1979)
- R v Davis [2004] NSWCCA 310
- R v Ellis (1986) 6 NSWLR 603
- R v Govinden (1999) 106 A Crim R 314
- R v Newell [2004] NSWCCA 183
- R v Nichols [2016] NSWDC 389
- R v Pullen [2018] NSWCCA 264