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District Court 25 February 2020

R v Cormack

[2020] NSWDC 128

Assault & violenceTheft & propertyFirearms & weapons
SENTENCING MULTIPLE OFFENCES AGGRAVATED ENTER WITH INTENT INTIMIDATION FORM 1 MATTERS RELEVANT FACTORS ON SENTENCE

Citation: R v Cormack [2020] NSWDC 128
Court: District Court of New South Wales
Date: 25 February 2020
Judge: Haesler SC DCJ

Background

The offender, Jason Scott Cormack, was sentenced for a series of offences committed in March and April 2018 against a man he had known for some years and considered a friend. The offences arose from a delusional fixation: the offender became convinced his friend had hacked into his mobile phone and other devices, and that the friend was concealing knowledge of an alleged affair involving the offender's partner.

The offending escalated from a carjacking on 18 March 2018, where the offender threatened the victim with a blade and drove away in his Holden Commodore, to an armed home invasion in the early hours of 17 April 2018. During the home invasion, the offender attended with another man who was armed with what appeared to the victim to be a firearm. The two men held the victim in his own home from 1am to 5am, during which the victim was subjected to prolonged accusations, threats, and demands for money, a bank card and PIN.

Additional Form 1 matters included using the victim's bank card to withdraw $1,000 from a Westpac ATM shortly after leaving the house. The offender pleaded guilty, though not at an early stage, and was sentenced on an aggregate basis with the sentence accumulating on an existing non-parole period from earlier proceedings before the same judge.

  • What was the appropriate objective seriousness of each offence, including the armed home invasion and sustained intimidation of the victim?
  • How should the guilty plea discount under section 25D of the Crime (Sentencing Procedure) Act 1999 be applied, and did it require rigid arithmetical precision in the context of accumulation?
  • What weight should be given to the offender's mental condition, drug use, and need for rehabilitation when setting the sentence?
  • Was a finding of special circumstances justified, and how should the non-parole period be calibrated when a sentence accumulates on an existing one?
  • How should the court preserve the ratio between the total effective sentence and the total non-parole period across accumulated sentences?

Decision

Haesler SC DCJ approached the sentencing task by first assessing the objective seriousness of each offence. The conduct was characterised as bizarre but genuinely intimidatory: the offender's unfounded belief that the victim had hacked his devices drove a sustained campaign of threats and violence against someone who had previously been his friend. The victim's dignity had been repeatedly violated, his property taken, and his home invaded in the middle of the night by men one of whom was armed.

On the guilty plea discount, the court applied a 10% reduction pursuant to section 25D of the Crime (Sentencing Procedure) Act 1999, reflecting the late timing of the plea. The judge observed that while the legislation appeared to require specific percentage adjustments, sentencing is not a mechanical or arithmetical exercise, citing Markarian v The Queen [2005] HCA 25. In the context of accumulation, the court sought to ensure the benefit of the plea was not eroded by the accumulation process, and rounded figures down where necessary.

The offender's mental condition and drug use were significant mitigating factors. The sentencing judge noted that the offender was, in a meaningful sense, "not himself" at the time of the offending. Substantial material, including ten indexed reports and references, was placed before the court on the offender's behalf. The court acknowledged that the offender would require considerable assistance to reintegrate into community life, and emphasised that releasing him in a worse mental condition than when he entered custody would be contrary to the community's interests.

A finding of special circumstances was made, taking into account the impact of accumulation on the overall sentence structure. The court was careful to preserve a proportionate ratio between the total effective sentence and the total non-parole period, consistent with principles drawn from Veen v The Queen (No 2) (1988) 164 CLR 465 and the broader sentencing framework.

Orders Made

  • Convictions recorded on all counts.
  • Count 1 (assault with intent to take a motor vehicle): 2 years 3 months, with a non-parole period of 1 year 5 months.
  • Count 2 (aggravated enter with intent to intimidate, taking into account Form 1 matters): 2 years 8 months.
  • Count 3 (intimidation): 1 year 9 months.
  • Count 4: 5 months.
  • Aggregate sentence: 3 years and 7 months, comprising a non-parole period of 1 year and 7 months commencing 6 December 2019 (expiring 6 July 2021), followed by a parole period of 2 years.
  • Finding of special circumstances made, including to account for the impact of accumulation.

Key Takeaways

  • The District Court confirmed that section 25D of the Crime (Sentencing Procedure) Act 1999 does not demand rigid arithmetical precision in applying guilty plea discounts, particularly where accumulation makes exact percentage compliance difficult to reconcile with other sentencing principles.
  • A late guilty plea attracted a 10% discount rather than the higher discount available for early pleas, reflecting the timing of the offender's decision to plead.
  • Where sentences accumulate on an existing non-parole period, the sentencing court must take care to preserve a proportionate ratio between the total effective sentence and the total non-parole period across all matters.
  • Special circumstances can be found where the need for extended supervision on parole is heightened by factors such as the offender's mental health, drug dependency, and the challenges of reintegration, particularly when accumulation also bears on the structure of the overall sentence.
  • The absence of a victim impact statement does not operate to mitigate an offender's culpability or the court's obligation to vindicate the victim's dignity through the imposition of an appropriate sentence, by operation of section 30E(1) of the Crime (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 25D, 30E(1)
- Crimes Act 1900 (NSW), ss 111(1) and (2), 154C(1)(a), 192E(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 166

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Jason Cormack, unreported, NSWDC, 4 May 2018, Haesler SC DCJ
- RL v R [2018] NSWCCA 274