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Court of Criminal Appeal 15 October 2004

Regina v McCormack

[2004] NSWCCA 367

Theft & propertyTraffic & drivingFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE ALLEGEDLY EXCESSIVE PARTIAL ACCUMULATION NO CAUSE FOR INTERVENTION NO PARTICULAR POINT OF PRINCIPLE

Citation: Regina v McCormack [2004] NSWCCA 367
Court: NSW Court of Criminal Appeal
Date: 15 October 2004
Judge(s): Grove J, Buddin J, Hoeben J

Background

The applicant was released on parole in July 2001 and subsequently became involved in a confrontation with a man who had a documented history of violent assaults against both the applicant and a woman with whom the applicant had a close relationship. On 28 December 2001, during a confrontation at a residential premises, the applicant shot and killed that man using an unlicensed semi-automatic pistol he had obtained for protection. He was later directed to be acquitted of murder.

Following the shooting, the applicant stole a motor vehicle, fitted it with altered number plates, and used it to evade police on 16 January 2002. During the pursuit, he collided with a police vehicle, causing a minor injury to one officer and limited damage. He was arrested in February 2002 and pleaded guilty to stealing the motor vehicle, using a vehicle as an offensive weapon to avoid apprehension, and unauthorised possession of a semi-automatic pistol.

Sperling J in the Supreme Court sentenced the applicant to a partially accumulated term with an effective total of five years and five months imprisonment, with a non-parole period of four years and two weeks. A 20 per cent discount was applied for the utilitarian value of the early guilty pleas. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the sentence on the firearms possession count was manifestly excessive, particularly given the applicant's claimed protective purpose in obtaining the weapon
  • Whether the sentencing judge erred in treating the firearms count as the most serious offence, contrary to a shared position advanced by counsel that the vehicle offence was the most serious
  • Whether the sentencing judge's approach to applying the guilty plea discount and finding special circumstances was methodologically flawed
  • Whether the overall sentence structure disclosed identifiable error warranting intervention by the Court of Criminal Appeal

Decision

The Court rejected the submission that the firearms sentence was manifestly excessive. Grove J noted that sentencing statistics must be used with caution and that what the statistics reflected were impositions, not assessments before discount. Once the 20 per cent plea discount was applied, the actual term imposed was markedly below the upper range. The applicant's prior record and commission of the offences while on parole were significant factors, notwithstanding that the sentencing judge accepted the offences did not represent a continuation of prior criminal patterns.

On the question of whether the sentencing judge was bound by the shared submission that the vehicle offence was the most serious count, the Court held he was not. A sentencing judge is not required to immediately respond to counsel submissions, even where they are identical, and retains an independent obligation to reach his or her own conclusions. That circumstance differed materially from a failure to give notice of a matter upon which a judge intended to rely.

The Court acknowledged the sentencing judge's methodology in applying the guilty plea discount and special circumstances finding was "unconventional" and perhaps different from how another judge might have approached it. However, the ultimate question was not whether the structure was orthodox, but whether the applicant had been unfairly or excessively sentenced overall. The Court found no identifiable error and concluded that the case for intervention had not been made out.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an unconventional sentencing methodology does not of itself constitute error warranting intervention, provided the ultimate sentence is not manifestly excessive or unfair to the offender.
  • Sentencing statistics require particular caution: the figures reflect sentences as imposed, not as assessed before discount, and each case turns on its own facts.
  • A sentencing judge is not bound by a shared position advanced by the parties on which count is the most serious; the judge retains an independent duty to make that determination.
  • Commission of offences while on parole and the existence of a substantial prior record remain significant sentencing factors, even where a judge accepts the current offences do not represent a continuation of prior criminal behaviour.
  • The Court of Criminal Appeal's power to intervene under s 6(3) of the Criminal Appeal Act 1912 arises only where some other sentence is warranted in law and should have been passed; no such case was established here.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Veen v The Queen (No 2) (1988) 185 CLR 465
- R v Bloomfield (unreported, NSWCCA, 15 July 1998)
- GAS & Anor v The Queen [2004] HCA 22
- R v Way [2004] NSWCCA 131
- Pearce v The Queen (1998) 194 CLR 610