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District Court 14 February 2014

R v Gary Mackay

[2014] NSWDC 2

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
MULTIPLE OFFENCES AGGREGATED TERMS OF IMPRISONMENT

Citation: R v Gary Mackay [2014] NSWDC 2
Court: District Court of New South Wales
Date: 14 February 2014
Judge: Mahony SC DCJ

Background

The offender appeared for sentence on two sequences of offences committed on 7 September 2012 and 8 October 2012. The September offences arose from a domestic dispute: the offender kicked in the front door of his partner's father's home, entered uninvited, and threatened the occupants with a screwdriver and knife. Those offences were committed while the offender was on parole for a prior shop-stealing conviction.

After his arrest for the September offences, the offender was taken to Wagga Wagga Base Hospital while in police custody. He escaped through a roof cavity in the hospital toilet, was briefly recaptured, then pushed a police officer over and fled. He then dragged a civilian driver from her car, took the vehicle, and drove off with a senior constable trapped in the door jamb. The officer was dragged alongside the vehicle and sustained a broken finger, lacerations, bruising, and other injuries requiring surgery.

The offender had an extensive criminal history dating to age 14, including prior convictions for housebreaking, assault, escape from custody, and drug-related offences. Substance use, including ice, methadone, opiates, and amphetamines, featured prominently in his background and was a factor at the time of both sequences of offending.

Legal Issues

  • What aggregate sentence was appropriate across eight offences from two separate criminal episodes, applying the totality principle and the requirements of the Crimes (Sentencing Procedure) Act 1999 (s 53A)?
  • What discount applied for each guilty plea, given the different stages at which pleas were entered?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the head sentence.
  • How to weight the offender's Indigenous background, difficult upbringing, and history of substance abuse as mitigating factors under the principles in R v Fernando.

Decision

Plea discounts: The court applied a 25% discount for the guilty pleas entered in relation to the September 2012 offences, which were entered at the telephone callover stage. A lesser discount applied to the October 2012 offences, for which pleas were not entered until 7 August 2013 at Wagga Wagga Local Court.

Objective seriousness and the October 2012 offences: The court treated the October 2012 offences as the more serious sequence. Escaping custody, taking a vehicle by force, using it to prevent apprehension, and injuring a police officer in the process represented significant criminality, particularly given the offender was already in police custody at the time.

Totality and concurrency: The court acknowledged that each sequence of offences arose from its own set of circumstances and applied partial concurrency within each sequence. The indicative individual sentences were structured to reflect the relative seriousness of each count, while the aggregate approach under s 53A allowed the court to impose a total term proportionate to the overall criminality.

Special circumstances: The court found special circumstances under s 53A, justifying an extended balance of sentence beyond the standard ratio. The rationale was the offender's need for an extended period of supervision by the Probation and Parole Service, specifically for drug and alcohol treatment, violence management, and anger management. The offender's background, including a history of family violence, long-term drug dependency, and his expressed desire to rehabilitate, informed this finding.

Orders Made

  • Convicted on all counts.
  • Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999:
  • Non-parole period of 3 years and 6 months, commencing 18 July 2013 and expiring 17 January 2017.
  • Balance of sentence of a further 3 years and 6 months, commencing 17 January 2017 and expiring 17 July 2020.
  • Total aggregate head sentence: 7 years.
  • Special circumstances found, varying the standard non-parole to head sentence ratio, on the basis of the need for extended supervision for drug, alcohol, and violence management.
  • Parole eligibility date fixed at 17 January 2017.
  • Indicative individual sentences recorded under s 53A(2)(b) as follows:
  • September 2012 offences: Count 1 (threaten injury) 18 months; Count 2 (armed with intent) 2 years 6 months; Count 3 (aggravated break and enter) 2 years.
  • October 2012 offences: Count 1 (escape custody) 12 months; Count 2 (take motor vehicle) 3 years with NPP of 1 year 6 months; Count 3 (use weapon to prevent apprehension) 1 year 6 months; Count 4 (assault police) 6 months; Count 5 (AOABH police) 2 years 6 months.

Key Takeaways

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence must still be accompanied by indicative individual sentences for each offence, enabling meaningful review of the sentencing process.
  • Where multiple offences arise from two distinct criminal episodes, partial concurrency within each episode may be appropriate to reflect the connection between counts, while maintaining an overall sentence proportionate to the total criminality.
  • A finding of special circumstances can be grounded in the offender's rehabilitative needs, particularly where extended post-release supervision for substance abuse and violence-related treatment is warranted by the evidence.
  • The principles in R v Fernando remain relevant when sentencing offenders whose Indigenous background involves exposure to family violence, substance dependency, and social disadvantage, as factors bearing on moral culpability and appropriate disposition.
  • Guilty pleas entered at different stages of proceedings attract different discounts, and the sentencing court is required to assess the utilitarian value of each plea according to when it was made.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- R v Barker (2006) NSWCCA 20
- R v Matthews (2007) NSWCCA 294
- Bugmy v R (2013) 302 ALR 192
- Pearce v R (1998) 194 CLR 610
- R v Fernando (1992) 76 AcrimR 58
- Kennedy v R [2010] NSWCCA 260
- Mill v The Queen (1988) 166 CLR 59
- R v Rae [2013] NSWCCA 9