R v McCormack

[2001] NSWCCA 360

CITATION:	R v McCormack [2001] NSWCCA 360
FILE NUMBER(S):	CCA 60488/00
HEARING DATE(S):	18 June 2001
JUDGMENT DATE:	18 June 2001
PARTIES :	Jason McCORMACK - Applicant CROWN - Respondent
JUDGMENT OF:	Simpson J at 1; Smart AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0305
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL :	P M Winch - Applicant M C Grogan - Crown Respondent
SOLICITORS:	D J Humphreys - Applicant S E O'Connor - Crown Respondent
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson and Hlulton [2000] NSWCCA 309; 14 NSWLR 383 R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346
DECISION:	See para 20.

IN THE COURT OF
CRIMINAL APPEAL

60488/00

SIMPSON J
SMART AJ

18 June 2001


REGINA v Jason McCORMACK

Judgment

SIMPSON J :

1 The applicant seeks leave to appeal against the severity of the sentence imposed upon him in the District Court on 28 July 2000, following his plea of guilty to an offence of assault with intent to rob whilst armed with an offensive weapon. Pursuant to section 97 (1) of the Crimes Act 1900 the offence carries a maximum penalty of imprisonment for twenty years. Judge Mahoney, who sentenced the applicant under the provisions of the Crimes (Sentencing Procedure) Act 1999, sentenced the applicant to imprisonment for eight years with a non-parole period of six years.

2    The offence was committed at about 8.15pm on the evening of Saturday, 18 December 1999. The victim was a young woman who was making use of an automatic teller machine in Crown Street, Surry Hills. The applicant approached from behind and put her in a headlock. His left arm was across her shoulder and down to her hip. He said, "I've got a knife, withdraw all your fucking money...I'm serious, I have a fucking knife". He pushed her with his arm and she fell to the ground.

3    The victim saw that he did in fact have a knife. She began to struggle and scream and the applicant ran off. Some off duty Federal Police Officers were nearby and pursued the applicant and apprehended him.

4    The subjective material that was placed before the sentencing judge was in the form of a psychological report by Ms Robilliard. The applicant was born on 7 August 1967. He was 32 years of age at the time of the offence. He had a lengthy criminal history which began in 1983, when he was 15, and includes many drug offences and offences of dishonesty. Significantly, there is a 1993 offence of escaping lawful custody, and a 1992 offence of using an offensive weapon with intent to prevent investigation. There does not appear to be any other offence of serious violence.

5    Ms Robilliard recounted a disturbed childhood. When the applicant was aged six a younger sister was born to his parents, but she was born with a disability and died shortly thereafter. Twelve months later the applicant's parents separated and the applicant was placed in the care of a maternal aunt. The reasons for the change in custody were not explained to him and he suffered emotionally as a result.

6    About five years later his mother sought to regain custody of him, and, again, no explanation was given to him for the disruption in his care arrangements. The return to his mother's home was unsatisfactory and he left home at the age of sixteen. He has had a number of relatively short term relationships. He began experimenting with cannabis and heroin from about age sixteen and has continued to use drugs. At one time he was using cocaine very heavily. When arrested he had begun a methadone program but since incarceration he has refused methadone. He told Ms Robilliard that he had in mind undertaking long term intensive drug rehabilitation but did not want to use that as a basis for mitigation in sentence because he thought it might be seen as manipulative. He recognised that unless he was ready for rehabilitation it would be a waste of time.

7    Psychological testing disclosed a pessimistic outlook, a perception of himself as vulnerable, depression, antisocial behaviour, drug dependence and anxiety.

8    Ms Robilliard provided an overall very favourable clinical opinion. In short her view was that the extremely disrupted circumstances of his childhood and adolescence had resulted in an antisocial disposition and depressive tendency with prominent avoidant and self-defeating behaviour. She considered him to be intelligent and articulate.

9    She did not in terms express a view that the applicant was likely to respond to rehabilitation, but in my view, a proper reading of her report leaves the impression that there is some hope for the applicant's future.

10    Two principal matters were advanced on behalf of the applicant. The first is that in the remarks on sentence, apart from in the opening sentence, there is no mention that the sentence was mitigated to any degree by reason of his plea of guilty.

11 S 22 of the Crimes (Sentencing Procedure) Act 1999 expressly requires the Court to take into account the fact that an offender has pleaded guilty, and the time at which he or she pleaded guilty or indicated an intention to do so, and empowers (but does not oblige) the Court to impose a lesser penalty than it would otherwise have done by reason of the plea. The Crown conceded that the absence of any reference to the plea of guilty and express consideration of whether it should result in a reduced sentence constitutes an error. However, the Crown has also argued that since a reduction in sentence does not automatically follow from a plea of guilty, it does not necessarily result in the intervention by this Court.

12 Counsel for the applicant acknowledged, and the Crown observed, that the Crown case was overwhelming, as indeed it was. Nevertheless by reason of the decision of this Court in R v Thomson and Houlton [2000] NSWCCA 309; 14 NSWLR 383, an offender may ordinarily expect some discount for the utilitarian value alone of a plea of guilty.

13    I see no reason why that principle should be departed from in this case. I therefore cannot accept the Crown's contention that the omission to mention expressly the effect of a plea of guilty is of no consequence. In my view it is necessary, in accordance with Thomson and Houlton, to adjust the sentence in recognition of the plea of guilty.

14 A secondary argument put on behalf of the applicant was that the sentence was manifestly excessive in the light of the judgment of this Court in R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346. In Henry this Court proposed a guideline sentence for armed robberies fitting a specified profile of between four and five years for the full term. However, the applicant departs from the profile in two important respects. Firstly, he was at the time of the offence 32 years of age and does not easily come within the description of "a young offender". Further, it could not be said that he had "no or little criminal history". A further aspect of the Henry profile involves the limited amount (if any) of actual violence; here the victim was physically assaulted in a violent manner.

15    A further aggravating feature is that the applicant was on parole at the time of the offence. Notwithstanding those departures, counsel for the applicant argued that the offence he committed and the circumstances in which he committed it did not make it twice as serious as the Henry profile resulting in a sentence of twice the guideline promulgated in Henry.

16    In Henry reference is also made to circumstances relevant to the question whether a greater or lesser sentence than that proposed in the guidelines should be imposed. These include the nature of the weapon, the vulnerability of the victim, the intensity of the threat, or the actual use of force and the effect on the victim or victims.

17    When those matters are translated to this case, particularly together with the applicant's significant criminal history and his age, it is quite clear to me that the sentence called for is significantly greater than the four to five years proposed in Henry. I refer again to the fact that the applicant was on parole at the time. The maximum penalty available in relation to the offences (except one) in Henry was, like the maximum penalty applicable to the section under which the applicant was charged, one of twenty years. There is no reason to distinguish this offence from those considered in detail in Henry.

18    Counsel for the applicant also referred to the prospects of rehabilitation and the absence of any history of this kind of offence. These, I think, were adequately considered in the proceedings on sentence.

19 I am satisfied that the only error discernible in the sentence is the absence of any consideration of a reduction in accordance with s 22. I am further satisfied that there is no reason to deny the applicant such a benefit. Having regard to the strength of the Crown case the discount is not properly to be placed at the top of the range of 10 to 25 per cent mentioned in Thomson and Houlton. Nevertheless, the victim of the offence was spared the need to relive her ordeal and the community was spared the cost of a trial, and 12 members of the public were spared the need to surrender their time and energies to jury work. In my opinion the sentence imposed should be reduced by approximately 15 per cent in order to accord the applicant his entitlement.

20    I propose that leave to appeal be granted, the appeal be allowed, the sentence previously imposed be quashed, and in lieu thereof the applicant be sentenced to imprisonment for six years and eight months to commence on 18 December 1999 and expire on 17 August 2006, with a non-parole period of five years to expire on 17 December 2004.

21    I would invite counsel to check the mathematics in relation to those sentences.

22    SMART AJ: I agree.

SIMPSON J: The order of the Court will therefore be as I have proposed, subject to any correction of the adding up.

(Counsel indicated the adding up was correct.)

SIMPSON J: Mr Winch will explain that to you, Mr McCormack.

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