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Court of Criminal Appeal 18 June 2001

R v McCormack

[2001] NSWCCA 360

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v McCormack [2001] NSWCCA 360
Court: NSW Court of Criminal Appeal
Date: 18 June 2001
Judge(s): Simpson J; Smart AJ

Background

The applicant pleaded guilty in the District Court to assault with intent to rob whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offence occurred in December 1999 when the applicant approached a young woman using an ATM in Surry Hills, placed her in a headlock, brandished a knife, and demanded she withdraw cash. She struggled and screamed, and the applicant fled, only to be apprehended by off-duty Federal Police officers nearby.

Judge Mahoney sentenced the applicant to eight years' imprisonment with a non-parole period of six years. The applicant was 32 years old at the time of the offence, had a lengthy criminal history beginning at age 15, and was on parole when the offence was committed.

The applicant sought leave to appeal on the grounds that the sentencing judge failed to expressly consider the guilty plea as a mitigating factor and that the sentence was manifestly excessive having regard to the Court of Criminal Appeal's guideline judgment in R v Henry.

  • Whether the sentencing judge erred by failing to expressly consider a reduction in sentence under s 22 of the Crimes (Sentencing Procedure) Act 1999 in light of the applicant's guilty plea
  • Whether the sentence of eight years was manifestly excessive when measured against the guideline sentencing range established in R v Henry and Ors [1999] NSWCCA 111

Decision

The Court accepted the Crown's concession that the sentencing judge's failure to mention or consider the guilty plea discount beyond the opening sentence of the remarks on sentence was an error. Under s 22 of the Crimes (Sentencing Procedure) Act 1999, a court is expressly required to take into account the fact and timing of a guilty plea. Following R v Thomson and Houlton, an offender may ordinarily expect some discount at least for the utilitarian value of the plea, even where the Crown case is overwhelming.

The Court declined to depart from that principle in this case. Although the Crown case left no realistic prospect of acquittal, the victim was spared the ordeal of giving evidence, the community avoided the cost of a trial, and jurors were relieved of the burden of service. The Court assessed an appropriate discount of approximately 15 per cent, placing it below the upper range referenced in Thomson and Houlton given the strength of the prosecution case.

On the manifest excess argument, the Court found the Henry guideline of four to five years for the full term was not a useful comparator on the facts. The applicant was not a young offender, had a significant criminal history, had committed actual physical violence against a vulnerable victim, and was on parole at the time. Those departures from the Henry profile justified a sentence significantly above the guideline range, and no manifest excess was established on that basis.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Applicant sentenced to imprisonment for six years and eight months, commencing 18 December 1999 and expiring 17 August 2006
  • Non-parole period of five years, expiring 17 December 2004

Key Takeaways

  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must expressly address the fact and timing of a guilty plea; failure to do so constitutes a sentencing error even where the Crown case is overwhelming.
  • Following R v Thomson and Houlton, an offender is ordinarily entitled to some discount for the utilitarian value of a guilty plea, and the strength of the Crown case affects the size of that discount rather than eliminating it altogether.
  • The Court of Criminal Appeal confirmed that the Henry guideline range applies to offenders fitting the specified profile; significant departures from that profile, including age, criminal history, actual violence, and commission of the offence while on parole, can justify a sentence substantially above the guideline.
  • A 15 per cent reduction was applied in circumstances where the plea had real utilitarian value (sparing the victim, the public, and the court system) despite the near-certain prospect of conviction at trial.
  • Commission of an offence whilst on parole remained a distinct and weighty aggravating factor that the Court took into account independently when assessing the appropriate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22

Cases
- R v Thomson and Houlton [2000] NSWCCA 309; 14 NSWLR 383
- R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346