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Supreme Court 14 November 2003

R v Glen Jeffrey McCormack

[2003] NSWSC 1139

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING NO QUESTION OF PRINCIPLE

Citation: R v Glen Jeffrey McCormack [2003] NSWSC 1139
Court: Supreme Court of New South Wales
Date: 14 November 2003
Judge(s): Sperling J

Background

The offender was charged with four offences arising from events in late December 2001 and early January 2002 in south-western Sydney. The most serious charge was the murder of a man who had a history of violent conduct towards the offender and towards a woman with whom the offender had a close friendship. At a trial limited to the murder charge, the offender was acquitted by direction on 24 July 2003.

The remaining charges proceeded to sentence on guilty pleas. These were: possessing an unlicensed .32 calibre semi-automatic pistol (the firearm used in the shooting); stealing a motor vehicle shortly after the shooting while the offender was at large; and using that same vehicle as an offensive weapon to resist lawful apprehension when police caught up with him on 5 January 2002. The court also took into account on a Form 1 a further offence of custody of a knife found at the time of arrest.

The offender was 34 at the time of the offences. He had a lengthy criminal history, having spent the majority of his adult life in custody for property, drug and other offences. He had been released on parole only five months before the events of December 2001 and was still on parole when the offences occurred.

  • What sentences were appropriate for each of the three offences, having regard to the circumstances in which they arose and the offender's background?
  • What weight should be given to the circumstances of the shooting (the subject of the acquitted murder charge) in sentencing for the firearm possession offence?
  • Whether the fact that the deceased was killed with the illegally possessed firearm constituted an aggravating factor for the firearm offence?
  • How the sentences should be structured and staggered to reflect the totality principle, and whether special circumstances existed to justify adjusting the standard ratio between non-parole periods and head sentences?
  • What discount was appropriate for the guilty pleas?

Decision

Firearm offence: Sperling J accepted that the offender acquired the pistol not to commit crimes but as a response to repeated serious violence from the deceased, against whom an apprehended violence order had proved ineffective. The court found the more probable explanation for not going to the police was the offender's lack of rapport with authority rather than the reasons he articulated. Regardless of motivation, the offence was serious and general deterrence carried significant weight given the proliferation of unlicensed handguns in the community.

The court held that the fact the deceased was shot and killed with the gun was not an aggravating feature of the firearm possession offence. The death was a consequence of the offender having a gun, not a consequence of his lacking a licence for it. The Crown appropriately conceded this point.

Motor vehicle theft and using a vehicle as a weapon: Sperling J identified a need for special deterrence on the vehicle theft charge, given the offender's prior offending of the same kind. The use of the stolen vehicle as a weapon to avoid arrest was treated as a serious offence. An additional offence of possessing a knife was taken into account on a Form 1 alongside the vehicle-as-weapon charge.

Structuring and totality: The court staggered the commencement dates of the three sentences to partially accumulate them, while applying the principle of totality to ensure the overall sentence was not disproportionate. A 25 percent discount was applied to each sentence for the guilty pleas. The court found special circumstances justifying a reduction in the non-parole period under the final sentence, bringing forward the earliest parole eligibility date so that it reflected approximately three-quarters of the total span of the sentences after the plea discount.

Orders Made

  • Third charge (stealing motor vehicle): imprisonment for 1 year and 8 months, commencing 16 January 2002, with a non-parole period of 1 year and 3 months expiring 15 April 2003.
  • Fourth charge (use motor vehicle as offensive weapon, taking into account the Form 1 knife offence): imprisonment for 3 years and 6 months, commencing 16 July 2002, with a non-parole period of 2 years, 7 months and 2 weeks expiring 1 March 2005.
  • Second charge (possess unlicensed pistol): imprisonment for 3 years and 8 months, commencing 16 October 2003, with a non-parole period of 2 years, 3 months and 2 weeks expiring 1 February 2006.
  • Earliest date of eligibility for release on parole: 1 February 2006.

Key Takeaways

  • Where an offender possesses an unlicensed firearm and subsequently uses it in a fatal shooting, the death of the victim is not automatically an aggravating factor for the firearm possession offence. The Supreme Court held that the relevant question is whether the death was a consequence of the absence of a licence, not merely a consequence of the firearm's existence.
  • Sentencing courts may partially accumulate sentences on separate charges to reflect the distinct criminality of each offence while still applying the totality principle to prevent the overall sentence from being crushing.
  • A guilty plea discount of 25 percent was applied across all charges, consistent with the court's assessment of utilitarian value and the circumstances of the pleas.
  • Special circumstances within the meaning of the sentencing legislation were found where the total period of consecutive sentences was such that the standard non-parole ratio would have produced a parole eligibility date disproportionate to the overall sentence structure. The court adjusted the non-parole period on the final sentence to address this.
  • The offender's background, including a difficult upbringing, long history of institutionalisation and drug dependency, informed the court's assessment but did not displace the weight given to general and specific deterrence, particularly for the unlicensed firearm charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33E, 154AA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Firearms Act 1996 (NSW), s 7

Cases cited: No cases were cited in the portions of the judgment provided.