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District Court 9 May 2025

R v MacGill

[2025] NSWDC 172

Drugs
COSTS IN CRIMINAL CASES DECLINED

Citation: R v MacGill [2025] NSWDC 172
Court: District Court of New South Wales
Date: 9 May 2025
Judge: Noman SC DCJ

Background

The offender, a well-known figure in Australian cricket, stood for sentence following a jury verdict finding him guilty of knowingly taking part in the supply of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge arose from his alleged role in facilitating an introduction between a regular drug supplier (referred to as Mr A) and a potential purchaser, Mr Sotiropoulos.

The offender had been charged with the most serious form of the offence, involving not less than a large commercial quantity (1 kg). The jury rejected both the principal charge and the first alternative (commercial quantity, between 250g and 1 kg), returning a guilty verdict only on the lesser "simpliciter" supply, which covers amounts below 250g.

Before the matter was committed to the District Court, the offender had offered to plead guilty to the very offence on which he was ultimately convicted, but the Crown declined that offer. He did not enter a guilty plea when arraigned and instead contested the charges at trial.

  • What factual findings should be made for sentencing purposes, including the quantity of cocaine involved and the extent of the offender's knowledge?
  • What sentencing discount, if any, should apply given the pre-committal offer to plead guilty?
  • Whether an intensive correction order (ICO) was an appropriate penalty.
  • Whether a costs certificate should issue under the Costs in Criminal Cases Act 1967 (NSW).

Decision

Factual findings on quantity and role. The court accepted the evidence of Mr A that the offender introduced him to Mr Sotiropoulos for the purpose of a cocaine supply, with an agreed price of $330,000 for what was described as a "brick." The court was satisfied beyond reasonable doubt that those discussions occurred, but consistent with the jury's verdict, proceeded on the basis that the offender did not know a "brick" equated to a kilogram or any weight above 250g. The court rejected a series of defence submissions that sought to minimise the offender's role, including suggestions that third parties could have been the true intermediary and that the offender's knowledge of quantity was limited to amounts as small as half a gram. The court declined to speculate beyond the evidence, noting that none of the suggested alternative conduits were supported by the trial record.

Sentencing discount. Because the offender had offered to plead guilty to the simpliciter supply offence before committal, and that offer was not accepted by the Crown, the court applied a 25% reduction to the otherwise determined sentence. The court noted the offender did not maintain that plea when arraigned, but the pre-committal offer to the charge on which he was convicted entitled him to the reduction under the applicable procedural framework.

Penalty. The court imposed an intensive correction order (ICO), treating the maximum penalty of 15 years imprisonment as a legislative guidepost for the seriousness of the offence. The fuller reasoning on the ICO is contained in the parts of the judgment not reproduced in the text provided.

Costs certificate. The offender applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The court declined. The central test, whether it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts beforehand, was not met. The court found there was a sound evidentiary basis to pursue the principal and first alternative charges at trial, and those charges remained open for the jury to find proved. The missing phone records, absence of CCTV, and lack of a floor plan relied on by the applicant were not regarded as relevant to this assessment, as there was no evidentiary basis to conclude they would have affected the question of the offender's knowledge of the commercial quantity involved.

Orders Made

• Decline to grant the certificate

Key Takeaways

  • A pre-committal offer to plead guilty to the charge on which the offender is ultimately convicted attracts a 25% sentencing discount, even where the offender does not maintain that plea at arraignment and contests the matter at trial.
  • Factual findings for sentencing after trial must be consistent with the jury's verdict, but the sentencing court is not confined to the most favourable factual interpretation for the offender; facts adverse to the offender must be established beyond reasonable doubt, while mitigating facts are assessed on the balance of probabilities.
  • Where a costs certificate is sought under the Costs in Criminal Cases Act 1967 (NSW), the applicant must satisfy the court that a reasonable prosecutor, with knowledge of all relevant facts from the outset, would not have instituted the proceedings. A mere failure to secure a conviction on the most serious charge does not meet that threshold.
  • Evidentiary gaps such as missing phone records or absent CCTV footage do not automatically support a costs certificate application; the court will assess whether that material would have been relevant to the specific elements on which the prosecution failed.
  • Speculation about third-party involvement will not be accepted as a basis for factual findings at sentence where no evidence at trial supported the alternative narrative and the offender himself gave no such evidence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Costs in Criminal Cases Act 1967 (NSW), ss 2(1)(a), 3, 3(1)(a), 3(1)(b), 3A
- Criminal Procedure Act 1986 (NSW), s 78
- Evidence Act 1995 (NSW), ss 18, 128
- Legal Aid Commission Act 1979 (NSW), s 42

Cases: No cases were identified by name in the judgment text.