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Court of Criminal Appeal 17 August 2015

R v McCormack

[2015] NSWCCA 221

Assault & violenceFirearms & weaponsPublic order & justice offences
BAIL DETENTION APPLICATION SHOW CAUSE OFFENCE ASSESSMENT OF BAIL CONCERNS

Citation: R v McCormack [2015] NSWCCA 221
Court: Court of Criminal Appeal, Supreme Court of New South Wales
Date: 17 August 2015
Judge(s): Hoeben CJ at CL, Price J, Fagan J

Background

The respondent, a 65-year-old man, was charged with three offences arising from an incident on 18 May 2015 at a rural property near Gwabegar, NSW. The allegations were that, while heavily intoxicated, he approached a neighbour armed with a rifle, threatened to shoot him, loaded the firearm, and aimed it at the neighbour's face. He was also charged with common assault following a physical altercation at the scene.

The respondent was arrested that day and initially refused bail. Following a Supreme Court release application, McCallum J granted bail on 15 July 2015, subject to a range of conditions including a requirement to live with his daughter, abstain from alcohol, and surrender any access to firearms.

The Acting Director of Public Prosecutions then brought a detention application under s 50 of the Bail Act 2013 (NSW), seeking to revoke that bail. The Court of Criminal Appeal determined the application afresh, as required by statute.

  • Whether the respondent had shown cause why his detention was not justified under s 16A of the Bail Act 2013 (NSW), as required for a "show cause" offence
  • Whether, if cause was shown, the identified bail concerns gave rise to an unacceptable risk that could not be adequately addressed by bail conditions

Decision

Two of the three charges (handling a firearm under the influence of alcohol and possessing a loaded firearm endangering life) qualified as "show cause" offences under s 16B(1)(d)(i) of the Bail Act. This placed the onus on the respondent to demonstrate, on the balance of probabilities, that detention was not justified. The Court found cause was shown in the particular circumstances of the case.

Central to the Court's reasoning was the prosecution's decision not to elect for trial on indictment, meaning all three charges would be dealt with summarily in the Local Court. As Table 2 offences, the maximum penalty for each charge was effectively capped at two years imprisonment, with a cumulative cap of five years. Judicial Commission sentencing statistics showed that 95 per cent of common assault matters and 66 per cent of s 93G matters in the Local Court resulted in non-custodial sentences. Given the time the respondent had already spent in custody and the uncertainty around when his matter would be heard (Wee Waa Local Court sitting only monthly), there was a real prospect that any pre-sentence custody would exceed any custodial sentence ultimately imposed.

On the question of bail concerns, the Court accepted there was some risk of non-appearance but assessed it as low. The respondent had returned home immediately after the incident without attempting to flee, had never previously failed to appear, and had in fact attended both the Wee Waa Local Court and this Court after being served with the detention application. The Court addressed the risks of further offending and endangerment to witnesses together, noting the respondent had no history of violence, had abstained from alcohol during his time on bail, had serious ongoing back problems, and lived approximately 40 kilometres from the alleged victim. The Court considered that the existing bail conditions, supplemented by two additional conditions, were sufficient to address those risks.

Orders Made

  • The Acting Director's detention application was refused.
  • Bail granted by McCallum J was continued, with two additional conditions imposed:
  • The respondent is not to go within 10 kilometres of the Old Bradley's Saw Mill at Gwabegar.
  • The respondent is not to approach or seek to contact any Crown witnesses, except through his legal advisors.

Key Takeaways

  • A prosecution decision to proceed summarily rather than on indictment is a material consideration in the "show cause" analysis, as it directly affects the maximum sentence a court can impose and therefore the likely period of pre-sentence custody.
  • Under s 32(1) of the Bail Act 2013 (NSW), where an accused faces show cause offences, the court must refuse bail unless satisfied on the balance of probabilities that cause has been shown.
  • Sentencing statistics published by the Judicial Commission are a permissible and relevant tool when assessing whether an accused is likely to receive a custodial sentence upon conviction.
  • Refusing the detention application, the Court of Criminal Appeal confirmed that each bail concern must be assessed on its own facts, and a finding of unacceptable risk requires more than a theoretical possibility of harm, non-appearance, or reoffending.
  • The Court emphasised that its observations regarding the likely sentencing outcome did not in any way constrain the discretion of the sentencing Magistrate who would ultimately deal with the charges.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B(1)(d)(i), 32(1), 50, 67(1)(e)
- Crimes Act 1900 (NSW), ss 61, 93G(1)(a)(ii), 556A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58(1)
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW), s 64(1)

Cases:
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83