Citation: Regina v G M McNally [1999] NSWCCA 449
Court: NSW Court of Criminal Appeal
Date: 6 December 1999
Judge(s): Sperling J; James J
Background
The applicant pleaded guilty in the District Court to one count of affray and one count of assault. The offences arose when he returned to a property where he had previously been employed, bringing associates with him to collect personal belongings. During the visit, the property owners were subjected to hours of harassment, threats of physical violence, and threats of death. One of the applicant's associates produced a firearm, which was pointed at the victims repeatedly.
Bell DCJ sentenced the applicant to a minimum term of two years and three months penal servitude with an additional term of nine months for the affray, plus a concurrent fixed term of six months for the assault. The applicant sought leave to appeal against those sentences.
Two co-offenders were dealt with separately. One received 300 hours of community service for affray, and the other received cumulative sentences that included a minimum term of 12 months for affray (imposed on top of an existing drug supply sentence), with the sentencing judge in that matter expressly applying the principle of totality.
Legal Issues
- Whether the sentencing judge gave too much weight to the evidence of one co-offender concerning responsibility for the firearm
- Whether the sentencing judge wrongly attributed greater criminality to the applicant than to the co-offender who physically produced the gun
- Whether the sentence imposed on the applicant was heavier than that imposed on a co-offender in a manner that breached the parity principle and gave the applicant a justifiable sense of grievance
- Whether the sentencing judge erred in failing to find special circumstances justifying a different ratio between minimum and additional terms
Decision
The Court declined to resolve whether any error had occurred in the sentencing process. Under section 6(3) of the Criminal Appeal Act 1912, the Court may only allow a severity appeal if it is of the opinion that a lesser sentence is warranted. Sperling J held that, even if error were established, he would not impose a lesser sentence on a fresh resentencing exercise. That conclusion made it unnecessary to determine the error questions.
On the seriousness of the conduct, Sperling J characterised the affray as a very serious instance of the offence. The victims were terrorised over several hours, threatened with death, and genuinely believed they were in physical danger. The applicant had continued to participate in the harassment after the firearm was produced, and there was evidence capable of supporting an inference that he knew of the gun's presence from the outset. Sperling J further noted that the entire operation served the applicant's purposes and that he had at no stage called it off or objected.
On the parity ground, the Court found the comparison with co-offenders was not straightforward. The co-offender who received community service had a materially different role. The other co-offender's sentences were structured by reference to the totality principle across a range of unrelated matters, making direct comparison unreliable. The sentence imposed on the applicant was not found to be disproportionate in those circumstances.
On special circumstances, Sperling J found none. The existing additional term, calculated in accordance with the statutory formula, was considered adequate to provide for supervised rehabilitation following the minimum term.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- Under section 6(3) of the Criminal Appeal Act 1912, a severity appeal can only succeed if the appellate court is of the opinion that a lesser sentence is warranted; where that opinion is not formed, the court need not determine whether an error in the sentencing process actually occurred.
- In dismissing the appeal, the Court of Criminal Appeal applied the principle that an offender's continued participation in serious criminal conduct, after circumstances escalate beyond what may have been anticipated, can be treated as affirmative evidence of complicity in that escalation.
- Parity comparisons between co-offenders require careful analysis of the sentencing structure applied to each person; where one sentence has been reduced by application of the totality principle across multiple unrelated matters, it does not straightforwardly stand as a benchmark for co-offenders sentenced on fewer charges.
- No special circumstances were found where the additional term already provided under the statutory formula was adequate to accommodate supervised rehabilitation.
- R v Isaacs (1997) 90 A Crim R 587, decided by a five-judge bench including the Chief Justice, confirmed the same approach: an appeal against sentence may be dismissed even where error by the sentencing judge is established, if the appellate court would impose no lesser sentence on a fresh assessment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 93C
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- R v Astill (No 2) (1994) 64 A Crim R 289
- R v Cocking [1999] NSWCCA 311
- R v Isaacs (1997) 90 A Crim R 587
- R v McDermott [1999] NSWCCA 379
- R v Oestler (NSW CCA, 7 October 1992, unreported)