AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 1 May 2020

McTague v R

[2020] NSWCCA 83

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE COMPARISON BETWEEN ROLES OF CO OFFENDERS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: McTague v R [2020] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 1 May 2020
Judge(s): Meagher JA, Harrison J, Button J

Background

The appellant pleaded guilty in the District Court to supplying a commercial quantity of methylamphetamine (over 400 grams), supplying MDMA, and had cocaine-related and driving charges dealt with alongside those principal counts. Between August and October 2016, he had supplied methylamphetamine on seven occasions to a co-offender known as Witness A, who acted as a delivery intermediary receiving $500 per ounce. Police also located further drugs and cash at the appellant's premises.

Judge Colefax sentenced the appellant in May 2018 to an aggregate term of 9 years imprisonment with a non-parole period of 5 years and 5 months. The sentencing judge accepted a 25% plea discount, noted a dysfunctional upbringing, a serious attack in custody (burns to 48% of his body), a history of poly-substance abuse, and guarded prospects of rehabilitation.

The appellant appealed to the Court of Criminal Appeal on four grounds, contending the sentence was wrong in its assessment of objective seriousness, its treatment of specific deterrence, and its outcome when compared with his co-offender's sentence. He also argued the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the principal drug supply count
  • Whether the sentencing judge erred in treating specific deterrence as "fully engaged" given the appellant's circumstances
  • Whether the aggregate sentence was manifestly excessive
  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and that of his co-offender, Witness A

Decision

Objective seriousness and co-offender comparison (Grounds 1 and 4): The Court considered these grounds together because the appellant's argument about objective seriousness was closely tied to the disparity argument. Witness A received an aggregate sentence of 9 years and 6 months, but that sentence incorporated an unrelated robbery in company. The indicative sentence for Witness A's drug supply was considerably lower than the appellant's equivalent indicative sentence. Harrison J found this was not an unjust disparity: the appellant was an up-line supplier, and Witness A was a subordinate courier earning a fixed fee. The difference in their roles justified the difference in their sentences.

Specific deterrence (Ground 2): The sentencing judge described specific deterrence as "fully engaged." The appellant argued this was inconsistent with findings about his drug dependency, remorse, and rehabilitation. The Court rejected this, noting the appellant had a relevant criminal history, had offended to fund his drug habit, had no legitimate employment for years, and that his rehabilitation prospects were described as only guarded. The sentencing judge was entitled to treat specific deterrence as a significant factor in those circumstances.

Manifest excess (Ground 3): The Court considered the totality of the appellant's criminality, which spanned three types of prohibited drugs and included possession of proceeds of drug sales. His role was characterised as that of a trusted senior participant in a drug supply network. The Court applied the principle from House v The King that an appellate court can only interfere if the sentencing discretion has miscarried such that no proper exercise of that discretion could have produced the sentence imposed. The Court was not satisfied that threshold had been reached.

All grounds failed, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A disparity in sentences between co-offenders is not itself an error: where roles differ materially (up-line supplier versus paid courier), different sentences are not only permissible but expected.
  • Specific deterrence can properly be treated as a significant sentencing consideration even where an offender demonstrates remorse and some rehabilitation, particularly where the offending history, employment record, and rehabilitation prospects together support that assessment.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that an aggregate sentence involving multiple drug types (here, methylamphetamine, MDMA, and cocaine) must reflect the breadth of an offender's involvement in drug supply, bearing on both notional accumulation and totality.
  • Under the manifest excess standard derived from House v The King, an appellant must show that no proper exercise of the sentencing discretion could have produced the sentence in question. Demonstrating a strong subjective case or pointing to comparable sentences does not, without more, satisfy that threshold.
  • Supplying three different types of prohibited drugs was treated as relevant to the extent of the appellant's involvement in drug trafficking, as well as to the structure of the aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1) and 25(2)
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- House v The King (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610
- Parente v R [2017] NSWCCA 284; 96 NSWLR 633
- Pak v R [2015] NSWCCA 45
- Laughton v R [2019] NSWCCA 318
- Ninness v R [2014] NSWCCA 288
- Delleci v R [2020] NSWCCA 4
- Vaughan v R [2020] NSWCCA 3
- Fenech v R [2018] NSWCCA 160
- Grabovac v R [2018] NSWCCA 100
- Mulato v R [2006] NSWCCA 282
- Paxton v R [2011] NSWCCA 242
- Stines v R [2019] NSWCCA 115
- Vaiusu v R [2017] NSWCCA 71
- Weinand v R [2013] NSWCCA 202