R (Cth) v Madgwick [2018] NSWCCA 268

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R (Cth) v Madgwick [2018] NSWCCA 268 Hearing dates: 24 October 2018 Decision date: 28 November 2018 Before: Hoeben CJ at CL at [1]; Davies J at [98]; Button J at [99] Decision: (1) The Crown appeal against the sentence imposed by his Honour Judge Frearson SC on 17 February 2017 is allowed.

(2) The sentence imposed by his Honour on 17 February 2017 is quashed.

(3) In lieu thereof, the respondent is sentenced to imprisonment with a head sentence of 6 years and 10 months, commencing 17 February 2017, with a non-parole period of 3 years and 5 months, expiring 16 July 2020, with the balance of term expiring 16 December 2023.

In respect of the respondent's appeal against sentence.

(1) Leave to appeal is granted but the appeal is dismissed. Catchwords: CRIMINAL LAW – sentence appeal by DPP (Cth) – one count of aid and abet importation of a commercial quantity of a border controlled precursor – the sentence imposed included a deduction for future co-operation – respondent subsequently refused to co-operate – application of s 16AC(3) and (4) of the Crimes Act (Cth) – appeal by DPP successful – finding that respondent without reasonable excuse did not co-operate in part in accordance with his undertaking – sentence increased – respondent's appeal against sentence – failure by sentencing judge to take into account utilitarian value of plea of guilty – error conceded by DPP – need to resentence – no lesser sentence warranted in law – respondent's appeal dismissed. Legislation Cited: Crimes Act 1914 (Cth) – s 16A(2)(h), 16AC Criminal Code (Cth) – ss 11.2, 307.11 Cases Cited: Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; 4 VR 285 Huang v R [2018] NSWCCA 57; 331 FLR 377 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Musa v R [2018] NSWCCA 192 Naizmand v R [2018] NSWCCA 25 Obiekwe v R [2018] NSWCCA 55 Peters v R [2018] NSWCCA 126 R v Clinton George Ribbon (District Court (SA), Stretton DCJ, 24 July 2018, unrep). R v Hammond [2001] NSWCCA 34; 121 A Crim R 1 R v KS [2005] NSWCCA 87 R v MI [2018] NSWCCA 251 R v YZ [1999] NSWCCA 263 Sintat v R [2018] NSWCCA 165 Wagner v R [2018] NSWCCA 124 Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 Category: Principal judgment Parties: Regina (Cth) – Appellant Crown Kristian James Madgwick – Respondent Representation: Counsel: S Buchen SC – Appellant Crown E Anderson – Respondent