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Court of Criminal Appeal 19 February 2025

McLaughlin v R

[2025] NSWCCA 13

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PLEA OF GUILTY FAILURE TO ADDRESS SUBMISSION ERROR ESTABLISHED

Citation: McLaughlin v R [2025] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 19 February 2025
Judge(s): Hamill J, N Adams J, Coleman J

Background

The applicant pleaded guilty in the Local Court to conspiracy to import a commercial quantity of a border controlled drug, namely 394.04 kilograms of methamphetamine (pure weight) with an approximate street value of $312.5 million. The offending occurred over approximately 13 months as part of an international criminal syndicate importing drugs from South Korea. The applicant set up a sham company, signed a warehouse lease near Newcastle in his own name, and was named as the consignee for seven consignments to that company.

A District Court judge sentenced the applicant on 15 March 2024 to 15 years imprisonment commencing 22 May 2021, with a non-parole period of 8 years and 6 months. A money laundering offence (dealing with property intending it become an instrument of crime, in an amount not less than $100,000) was taken into account on a Schedule under s 16BA of the Crimes Act 1914 (Cth).

The applicant sought leave to appeal against that sentence on three grounds, each alleging a different error in the sentencing process.

  • Whether the sentencing judge denied the applicant procedural fairness by rejecting expert evidence of a material causal connection between the applicant's ADHD and his offending, without giving him an opportunity to address that finding
  • Whether the sentencing judge erred in finding the applicant occupied a position in the criminal hierarchy above the mid-level management tier, when the agreed facts did not support that finding
  • Whether the sentencing judge erred by failing to take into account, or failing to address in her reasons, the applicant's willingness to facilitate the course of justice as a distinct consideration from the utilitarian value of his guilty plea and his remorse

Decision

Ground 1: Procedural fairness and ADHD expert evidence. The sentencing judge had indicated during submissions that the Crown did not challenge the applicant's expert evidence of a causal connection between ADHD and the offending, and that the only dispute was the extent to which that connection reduced moral culpability. After that indication, the applicant's counsel made no further submissions on the point. The sentencing judge then found that she did not accept there was any "material" causal connection. The Court of Criminal Appeal held that this sequence denied the applicant procedural fairness: he had no opportunity to be heard on a finding that went beyond what the parties understood to be in contest.

Ground 2: Role in the hierarchy. The sentencing judge found the applicant held a position between the mid and senior levels of the syndicate. The Court of Criminal Appeal accepted that, while the agreed facts demonstrated significant involvement, they did not permit a finding as to the applicant's actual position in the hierarchy. That factual error had the capacity to influence the result. Importantly, however, the Court reached the same finding of objective seriousness on resentencing, so the error did not produce a dramatically different assessment of the gravity of the conduct.

Ground 3: Willingness to facilitate the course of justice. The applicant had made three distinct submissions about his early guilty plea: its utilitarian value, its relevance to remorse, and its reflection of a willingness to facilitate the course of justice. The sentencing judge addressed the first two but made no reference to the third. The Crown conceded this was an error, and the Court agreed. Because error was established on at least one ground, the Court was required to resentence the applicant afresh.

Resentencing. On resentencing, the Court took into account the applicant's genuine remorse, lack of relevant prior convictions, low risk of reoffending, good prospects of rehabilitation, productive conduct in custody, the additional burden his ADHD placed on his period of incarceration (including during COVID lockdown periods), and the impact on his family. A 25% discount was applied, and the Schedule offence was taken into account. The Court imposed a reduced sentence of 12 years imprisonment with a non-parole period of 7 years and 6 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed by Judge O'Rourke SC on 15 March 2024 is quashed
  • In lieu thereof, the applicant is sentenced to 12 years imprisonment commencing 22 May 2021 and expiring 21 May 2033, with a non-parole period of 7 years and 6 months expiring 21 November 2028

Key Takeaways

  • A sentencing court denies procedural fairness when it makes an adverse finding on a factual issue that goes beyond what the parties understood to be in dispute, without giving the affected party an opportunity to be heard, even where that issue was the subject of expert evidence already before the court.
  • Where agreed facts establish significant involvement in a criminal enterprise but do not specify a defendant's actual position in the hierarchy, a sentencing court cannot make a finding as to that position without a proper evidentiary basis.
  • A guilty plea raises three legally distinct considerations at sentencing: its utilitarian value, its bearing on remorse, and its demonstration of a willingness to facilitate the course of justice. Each must be addressed separately in the reasons.
  • Failure to address a discrete submission about a mitigating factor constitutes an error capable of infecting the sentence, requiring resentencing afresh under the authority of Kentwell v The Queen (2014) 252 CLR 601.
  • In fixing a non-parole period on resentencing, the Court of Criminal Appeal declined to replicate the same ratio between head sentence and non-parole period as the sentencing judge had used, observing that the non-parole period must independently reflect all purposes of sentencing under Power v The Queen (1974) 131 CLR 623.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16BA
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1), 400.4(1)
- Telecommunications (Interception and Access) Act 1979 (Cth)

Cases
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Baroudi v R [2007] NSWCCA 48
- Chong v R [2017] NSWCCA 185
- Giles-Adams v R; Preca v R [2023] NSWCCA 123
- Benn v R [2023] NSWCCA 24
- Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
- Hordern v R [2019] NSWCCA 138
- AB v R [2014] NSWCCA 339
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156