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17
Court of Criminal Appeal 1 November 2024

McGregor v R

[2024] NSWCCA 200

Also reported as (2024) 116 NSWLR 81
Sexual offences

Citation: McGregor v R [2024] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 1 November 2024
Judges: Bell CJ; Kirk JA; Harrison CJ at CL; Davies J; Sweeney J

Background

The appellant pleaded guilty in the District Court to four federal offences involving child sexual abuse. One count carried a mandatory minimum sentence of seven years under s 16AAA of the Crimes Act 1914 (Cth). The sentencing judge imposed an aggregate term of 11 years and 6 months with a non-parole period of eight years, commencing 5 October 2021.

On appeal, the appellant argued that the sentencing judge had misread s 16AAC of the Crimes Act, which governs how courts may reduce a mandatory minimum sentence for a guilty plea and cooperation with authorities. The Crown conceded that error.

A further issue arose during resentencing. The Crown contended, contrary to its own position in earlier proceedings, that aggregate sentencing under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) was unavailable for federal offences generally, and in particular for offences subject to mandatory minimums under s 16AAA.

  • Whether the sentencing judge misconstrued s 16AAC of the Crimes Act by treating it as a cap on the discount rather than a floor on the resulting sentence
  • Whether aggregate sentencing under s 53A of the CSP Act is available when sentencing federal offenders in NSW courts
  • Whether imposing an aggregate sentence that includes a count subject to s 16AAA would be inconsistent with that provision
  • What sentence should be imposed on resentencing

Decision

Construction of s 16AAC. The Court held that s 16AAC is ambiguous but that the preferable construction, on text, context and purpose, is that the provision sets a minimum floor below which a sentence cannot fall, rather than a cap on the discount itself. The sentencing judge had treated the provision as limiting the discount to a percentage of the mandatory minimum. On the correct approach, where a court determines an appropriate discount percentage, the provision simply prevents the resulting sentence from falling below the prescribed floor. For example, where the mandatory minimum is seven years and a 50% discount applies to a 20-year starting point, the maximum discount available is 10 years (not 3 years 6 months as the judge calculated). The Court confirmed that s 16AAC does not itself require a court to express the discount in percentage terms; percentages appear only for the purpose of identifying that floor.

Aggregate sentencing and federal offences. The Court confirmed that s 53A of the CSP Act is capable of being picked up as federal law by s 68(1) of the Judiciary Act 1903 (Cth), and that it does not conflict with Part 1B of the Crimes Act. Because the availability of aggregate sentencing had been agreed rather than contested in DPP (Cth) v Beattie [2017] NSWCCA 301, the ordinary threshold for overturning a prior decision of the Court did not apply. On a fresh examination, the Court found no inconsistency: s 53A(2)(b), when properly construed, requires a court to indicate on an indicative basis the sentence it would otherwise have imposed for each offence individually, applying whichever sentencing principles are applicable to that offence. Where federal principles apply, they are applied; there is no conflict with state law.

Aggregate sentencing and s 16AAA. The Court rejected the Crown's submission that aggregate sentencing was incompatible with the mandatory minimum regime. An aggregate sentence of at least the minimum term satisfies the requirement in s 16AAA that at least such a term be imposed for the listed offence. The fact that the aggregate sentence also reflects other offences does not alter that conclusion. The Court further noted that s 4K(4) of the Crimes Act itself provides for aggregate sentencing in relation to federal summary offences, and that concurrent sentences are already permissible for offences covered by ss 16AAA to 16AAC, indicating no structural incompatibility.

Resentencing. Applying a 30% discount for the combined effect of the guilty plea and assistance to authorities, the Court substituted an aggregate term of 10 years and 9 months with a non-parole period of 7 years and 6 months, commencing 5 October 2021.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Herbert DCJ on 28 October 2022 quashed
  • Appellant resentenced to an aggregate term of imprisonment of 10 years and 9 months commencing 5 October 2021 and expiring 4 July 2032, with a non-parole period of 7 years and 6 months expiring 4 April 2029

Key Takeaways

  • Section 16AAC of the Crimes Act 1914 (Cth) operates as a minimum floor on the sentence that may result after discounting for a guilty plea or cooperation, not as a cap limiting the size of the discount itself. Courts must not treat the prescribed percentages as defining the maximum discount available.

  • The Court of Criminal Appeal confirmed, on a fresh analysis, that aggregate sentencing under s 53A of the CSP Act is available when NSW courts sentence federal offenders. Section 68(1) of the Judiciary Act 1903 (Cth) picks up s 53A as federal law, and no conflict exists with Part 1B of the Crimes Act.

  • Because the point had been agreed rather than decided in DPP (Cth) v Beattie, the "plainly wrong" threshold for departing from a prior decision of the Court did not apply. The Court was free to consider the question afresh.

  • An aggregate sentence that meets or exceeds the mandatory minimum satisfies the requirement in s 16AAA. Including a mandatory minimum count within an aggregate sentence does not defeat the purpose of that provision.

  • Section 16AAC does not require a court to express a discount in percentage terms; percentages appear in the provision solely to define the floor, and the sentencing exercise otherwise proceeds in the ordinary way.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 4K, 16AAA, 16AAB, 16AAC, 16E, 19, 19AB, 19AG, 20AB
- Judiciary Act 1903 (Cth), s 68
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25A, 44, 49, 53A, 54B, 66
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW)
- Sentencing Act 1991 (Vic), s 9; Sentencing Act 1995 (NT), s 52; Sentencing Act 1997 (Tas), s 11; Sentencing Act 2017 (SA), s 26

Cases:
- Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485
- Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298
- Obian v The King [2024] HCA 18; (2024) 98 ALJR 771
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
- Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314
- Batak v R [2024] NSWCCA 66
- Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
- CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64
- Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
- House v The King (1936) 55 CLR 499; [1936