Regina v McCormack [2004] NSWCCA 367 | Case summary

1 GROVE J: This is an application for leave to appeal against the severity of sentences imposed by Sperling J. It is convenient to sketch some background facts against which the sentences were constructed. 2 The applicant was released from prison to parole on 28 July 2001. He went to reside with his sister but resumed a friendship with Ms Natalie McDonough, of one of whose children he was the father. At December 2001 Ms McDonough had recently given birth to a child fathered by one Andrew McIntyre. However, the applicant gave Ms McDonough assistance during her pregnancy including caring for her children. His Honour found there was a history of violence by McIntyre against the applicant and Ms McDonough and on more than one occasion there had been serious assaults by him on the applicant. 3 Hidden at Ms McDonough's house was a handgun which the applicant had acquired "against the threat of further violent behaviour" against him. On 28 December 2001 McIntyre entered her dwelling against Ms McDonough's protests. 4 The applicant, who was present, armed himself with the handgun and during a confrontation with Mr McIntyre, he shot and killed him. He then fled the scene and returned the weapon to the person from whom it had been obtained. He stole a car and attached some different registration plates which he later told police (ERISP questions 30-33) that he had obtained from "a burnt out shed sort of" for the purpose of disguising the vehicle "so it wouldn't come up stolen". 5 On 16 January 2002 the applicant was in this vehicle and stopped at traffic lights in Lurnea. A police vehicle was positioned to arrest its progress. Two officers commenced to alight from their vehicle whereupon the applicant accelerated his car but was unable to clear the obstructing police vehicle with which he collided thereby injuring one of the constables. His Honour found that neither the damage to the police vehicle (for which there was a recovery claim of under $2,000) nor the injury to the police officer was "substantial". Senior Constable McCormack (coincidentally bearing the same surname as the applicant) was treated by an ambulance officer for a laceration and off duty for three days. 6 The applicant has been in custody continuously since his arrest on 16 February 2002. He was indicted on a charge of the murder of Mr McIntyre upon which indictment he was, by direction, found not guilty. 7 On other counts he pleaded guilty and sentences were imposed as follows: Count 3 (stealing the motor vehicle): Imprisonment for one year eight months commencing on 16 January 2002 with a non parole period of one year three months commencing on 16 January 2002 and expiring on 15 April 2003. Count 4 (using an offensive weapon namely the stolen car with intent to prevent apprehension and taking into account on a Form 1 custody of a knife found in his possession): Imprisonment for three years six months commencing on 16 July 2002 with a non parole period of two years seven months and two weeks commencing on 16 July 2002 and expiring on 1 March 2005. Count 2 (unauthorized possession of semi automatic pistol): Imprisonment for three years eight months commencing on 16 October 2003 with a non parole period of two years three months two weeks commencing on 16 October 2003 and expiring on 29 January 2006. 8 The applicant's earliest date of eligibility for parole is 29 January 2006. The effective sentence from the initial day of custody is five years five months with a non parole period of four years and two weeks. It should be noted, however, that on 22 January 2002 the Parole Board revoked the parole pursuant to which the applicant had been released on 28 July 2001 and he was serving the balance of parole from 17 January 2002 until 5 August 2002. The effect of this order was to make service of that balance of parole concurrent with the first six months and twenty days of the sentences imposed by Sperling J. 9 In assessing the sentences abovementioned his Honour expressly stated that he would allow a discount of 20 percent for the utilitarian value of the (early) pleas. 10 In examining the grounds advanced on behalf of the applicant it has to be borne in mind that not only were the offences committed whilst he was on parole as abovementioned, but that he had a substantial prior record of convictions. In the applicant's favour his Honour had observed: "The subject offences arose out of the events of 28 December 2001. They cannot be seen as a continuum of the pattern of criminal behaviour which marked the offender's life up to the last of the periods of imprisonment prior to these events." 11 Accepting his Honour's finding in that regard, it remains the case that the existence of the applicant's prior record is significant: Veen v The Queen (No 2) 1988 185 CLR 465. 12 The first ground of appeal asserts that the assessment of five years imprisonment with a non parole period of three years nine months (prior to discount for the plea of guilty) on count 2 was manifestly excessive. The applicable prescribed maximum penalty is fourteen years imprisonment. Counsel refers to what are claimed to be the objective facts relevant to this charge namely: (i) The applicant obtained the gun to protect himself and others from McIntyre's behaviour, (ii) He did not acquire the weapon in order to commit crimes, (iii) Although he should have gone to police for assistance he was aware that an apprehended violence order taken out against McIntyre had not been effective and, given his own record, he believed police might be reluctant to help him, and (iv) That he used the weapon in self defence was not an aggravating factor. 13 As a matter of classification I would think that these are subjective rather than objective, matters touching upon the circumstances of the offender and the offence but discrimination of that nature need not be made in order to determine this ground. 14 The Court was referred to available collated sentencing statistics although it was acknowledged that only a small sample could be examined. These have been analysed in a written submission on behalf of the applicant and no point will be served by repeating that recitation. What can be observed is that every case is very different. Further authorities were produced at the hearing today. Nothing derived therefrom can be determinative of the appeal. 15 The present is a particularly good example of the caution which must be exercised when adverting to statistics: R v Bloomfield unreported NSWCCA 15 July 1998. Although the submission is made that the assessment by his Honour lies at the top of the range revealed by the statistics, the top of the range represents impositions not assessments. In this case the actual imposition was markedly less following discount for the plea of guilty. In addition it remains a relevant underlying circumstance that the applicant was serving partly concurrent sentences for other offences as well as discharging his obligation to serve balance of parole. 16 Attention was drawn to an agreement of the parties conveyed to the sentencing judge in the course of submission that count 4 (using the vehicle as a weapon to avoid apprehension) was the most serious offence. It is said that his Honour raised no concern at the time. It cannot be expected of a sentencing judge that he make immediate response to submissions made by counsel even when these are identical. That circumstance is quite distinguishable from a circumstance where a judge fails to give notice of some matter upon which he or she intended to rely in order to determine an outcome. It was a normal course for parties to make submissions and the circumstance that in this case they were to the same effect did not relieve his Honour of the obligation of making his own decision. He was certainly not bound to apply any unanimity of view held or expressed by counsel. As recently remarked, a judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel: GAS & Anor v The Queen [2004] HCA 22. The situation now complained of is analogous. 17 Reference was made to the prescription of standard minimum non parole periods, a statutory regime which is not applicable to the present case. What is sought to be done is to draw attention to a standard non parole period for this offence of three years and to contend that, as this should be taken to be appropriate for offences which fall within the middle range of objective seriousness (R v Way [2004] NSWCCA 131), then a starting point of three years nine months non parole period before discount for plea of guilty was excessive. 18 This ground can only be sustained if it can be demonstrated that the sentence imposed was disproportionate to the facts and circumstances of the offence and the offender. I have already mentioned matters relevant to both those aspects. The argument advanced is artificial in that it appeals to permutation of figures rather than focussing upon the exercise in sentencing judgment upon which his Honour was engaged. 19 I would reject ground 1. 20 Ground 2 asserts that the overall sentence imposed upon the applicant was manifestly excessive. 21 Reference is made to his Honour's finding that whilst the offences were not part of the same episode they were in a sense part of the same course of conduct and that it was appropriate therefore that there be some accumulation but not totally so. This conclusion is not the subject of challenge. 22 The ground is sought to be supported by commencing with an arithmetical calculation of what is described as the "percentage concurrency of sentences". The calculation produces a figure of 36 percent. The relevant consequence of this calculation, bearing in mind the absence of challenge to the conclusion that there should be some but not total concurrency, is obscure. 23 I agree with the submission by the Crown Prosecutor that the real question for determination is whether the applicant has demonstrated that the sentence imposed so plainly exceeded what totality permitted that it could be said that there was error in the exercise of sentencing discretion. 24 There is no such error manifest. I should not refrain from expressing my view that given the character of the offences, the facts and circumstances surrounding them and giving proper regard to the aggravation inherent in committing offences whilst on parole as well as the particular offender possessing a significantly bad prior record, the sentences were lenient indeed. 25 The third ground is that his Honour erred with respect to findings as to special circumstances. 26 Again there is presented on behalf of the applicant a detailed arithmetical calculation. 27 It has to be acknowledged that his Honour's approach might be described as unusual, however he expressly disclosed his processes of reasoning in setting out what he described as "sentencing methodology". He revealed that what he intended to do was first state the regime of sentences he would regard as appropriate but for the pleas of guilty, then discount the total time span of the sentences by 20 percent for those pleas and then consider the question of special circumstances and the effect of that consideration. 28 Thereafter having set the periods and indicated commencement and expiry dates he referred to adjustment under the "provisional" statutory formula by which I take him to have been referring to the statutory proportion between head sentence and non parole period in the absence of a finding of special circumstances. His Honour found special circumstances in what he regarded as the appropriate amount of time during which the applicant might potentially be on parole. 29 It is true that, looking at the matter arithmetically and in the way his Honour approached it, he made adjustments only in respect of one of the sentences but it is clear that he had in mind the overall picture and he expressly stated that he made "no further allowance for this consideration, being of the view that the period under supervision on parole will be adequate to optimize the prospect of rehabilitation". 30 Whilst approaching the matter in that fashion might be regarded as unconventional the result does not bespeak error. 31 As in the case in any appeal against sentence the exercise of the power of this Court is attracted only if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed (s 6(3) Criminal Appeal Act 1912). 32 A submission was made specifically complaining that Pearce v The Queen 1998 194 CLR 610 would require the discount applied to each of the sentences imposed by his Honour. As I have commented, his Honour's approach was unusual but the ultimate issue includes discernment of whether this applicant has been unfairly dealt with and excessively sentenced. It may be that if I were a primary sentencing judge I would have structured sentences differently from his Honour but the ultimate question for this Court is whether, in the absence of identifiable error, this Court should intervene to vary sentences, in these circumstances and relating to this offender, which effectively amount to five years five months imprisonment with a non parole period of four years and two weeks. 33 In my opinion the case for such intervention is not made out. 34 I would grant leave to appeal against sentence but dismiss the appeal. 35 BUDDIN J: I agree. 36 HOEBEN J: I agree. 37 GROVE J: The orders of the court therefore will be as I have proposed.

Regina v McCormack

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