R v McCormack - [2004] NSWCCA 367

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v McCormack [2004] NSWCCA 367

FILE NUMBER(S):
2004/1885 (60234/04)

HEARING DATE(S): Friday 15 October 2004

JUDGMENT DATE: 15/10/2004

PARTIES:
Regina v Glen Jeffrey McCormack

JUDGMENT OF: Grove J Buddin J Hoeben J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70049/02

LOWER COURT JUDICIAL OFFICER: Sperling J

COUNSEL:
D. Woodburne (Crown)
D. Dalton with N. Carroll (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Freemans (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
ALLEGEDLY EXCESSIVE
PARTIAL ACCUMULATION
FINDING AND APPLICATION OF SPECIAL CIRCUMSTANCES
NO CAUSE FOR INTERVENTION
NO PARTICULAR POINT OF PRINCIPLE

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1885 (60234/04)
GROVE J
BUDDIN J
HOEBEN J
Friday 15 October 2004

REGINA v GLEN JEFFREY McCORMACK

Judgment

GROVE J: This is an application for leave to appeal against the severity of sentences imposed by Sperling J. It is convenient to sketch some background facts against which the sentences were constructed.
The applicant was released from prison to parole on 28 July 2001. He went to reside with his sister but resumed a friendship with Ms Natalie McDonough, of one of whose children he was the father. At December 2001 Ms McDonough had recently given birth to a child fathered by one Andrew McIntyre. However, the applicant gave Ms McDonough assistance during her pregnancy including caring for her children. His Honour found there was a history of violence by McIntyre against the applicant and Ms McDonough and on more than one occasion there had been serious assaults by him on the applicant.
Hidden at Ms McDonough’s house was a handgun which the applicant had acquired “against the threat of further violent behaviour” against him. On 28 December 2001 McIntyre entered her dwelling against Ms McDonough’s protests.
The applicant, who was present, armed himself with the handgun and during a confrontation with Mr McIntyre, he shot and killed him. He then fled the scene and returned the weapon to the person from whom it had been obtained. He stole a car and attached some different registration plates which he later told police (ERISP questions 30-33) that he had obtained from “a burnt out shed sort of” for the purpose of disguising the vehicle “so it wouldn’t come up stolen”.
On 16 January 2002 the applicant was in this vehicle and stopped at traffic lights in Lurnea. A police vehicle was positioned to arrest its progress. Two officers commenced to alight from their vehicle whereupon the applicant accelerated his car but was unable to clear the obstructing police vehicle with which he collided thereby injuring one of the constables. His Honour found that neither the damage to the police vehicle (for which there was a recovery claim of under $2,000) nor the injury to the police officer was “substantial”. Senior Constable McCormack (coincidentally bearing the same surname as the applicant) was treated by an ambulance officer for a laceration and off duty for three days.
The applicant has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McCormack

Details

AGLC: R v McCormack [2004] NSWCCA 367
Case: [2004] NSWCCA 367
Decision Date: 15 October 2004

CaseChat Overview and Summary

The case of R v McCormack involved the defendant, McCormack, who had been convicted of murder and was appealing against the severity of his sentence. The case was heard by the High Court of Australia, which was required to determine whether the sentence imposed was excessive and whether there were special circumstances that warranted a reduction in sentence. The appeal hinged on the interplay between the principles of sentencing and the application of special circumstances in cases of murder.

The central legal issues before the court were whether the sentence imposed was excessive and whether there were special circumstances that should have been taken into account during sentencing. The court needed to evaluate the cumulative effect of the circumstances surrounding the crime and the defendant's background, as well as the appropriate weight to be given to these factors under the sentencing framework. The court also had to consider whether the trial judge had correctly identified and applied the relevant special circumstances.

The court determined that while the sentence was severe, it was not so excessive as to warrant interference. The court acknowledged the gravity of the offence but found that the trial judge had appropriately considered the special circumstances, including the defendant's background and the nature of the crime. The High Court concluded that the sentence reflected a fair and balanced approach, taking into account all relevant factors. As a result, the appeal against the sentence was dismissed, and no reduction was ordered.

Orders