R v McMaster - [2020] NSWDC 673

District Court

New South Wales

Medium Neutral Citation: R v McMaster [2020] NSWDC 673
Hearing dates: 22 October 2020
Date of orders: 22 October 2020
Decision date: 22 October 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months

Catchwords:
CRIME — Violent offences — Armed robbery — Dangerous weapon
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — Maximum penalty
SENTENCING — Relevant factors on sentence — Multiple offences
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Relevant factors on sentence — Parole period

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

Cases Cited:
Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Markarian v R [2005] HCA 25
Muldrock v R [2011] HCA 39
R v Henry [1999] NSWCCA 107
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties:
Regina (Crown)
Jordan McMaster (Offender)
Representation:
Shaun Croner (Crown)

Lynda Davids (counsel for the Offender)
Director of Public Prosecutions (NSW) (Crown)
Chandler Legal (Offender)

File Number(s): 2020/00029838

REVISED EX TEMPORE JUDGEMENT

Introduction

Jordan McMaster appears today for sentence in respect of two offences.
The first of those is of being armed with a dangerous weapon, namely an airgun pistol, he assaulted with intent to rob, MLO. The offence is contrary to s 97(2) Crimes Act 1900 with a maximum penalty of imprisonment for 25 years. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.
The second offence is of possessing the weapon used in the first offence. This item was an unauthorised pistol and therefore possessed in contravention of s 7(1) Firearms Act 1996 for which the maximum penalty is imprisonment of 14 years with a standard non-parole period of four years.

The Standard Non-Parole Period

The standard non‑parole period is a matter that must be brought to account when determining the appropriate sentence for the second of the offences. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 in their present form following the decision of the High Court of Australia in Muldrock v R [2011] HCA 39.
Section 54A(1) provides that the standard non-parole period for an offence as that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of the offence, that falls within the middle of the range of objective seriousness. Section 54B(2) provides that the standard non‑parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters…

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 McMaster

Details

AGLC: R v McMaster [2020] NSWDC 673
Case: [2020] NSWDC 673
Decision Date: 22 October 2020

CaseChat Overview and Summary

The case of R v McMaster came before the court as an appeal against sentence. McMaster was convicted of armed robbery, having used a dangerous weapon during the offence. The appeal concerned the severity and appropriateness of the sentence imposed. The court was tasked with determining whether the original sentence was too lenient given the nature and circumstances of the offence, and whether the non-parole period was adequately reflective of the objective seriousness of the crime.

The legal issues before the court involved the assessment of the appropriate sentence for a form 1 offence, the consideration of the maximum penalty for such offences, and the application of aggregate sentencing principles in the context of multiple offences. The court also had to weigh the objective seriousness of the crime, the necessity of deterrence, and the suitability of the non-parole period in relation to the crime's gravity.

In its judgment, the court found that the original sentence was insufficiently severe given the use of a dangerous weapon and the violent nature of the offence. The court considered the maximum penalty applicable for armed robbery and determined that an aggregate sentence was warranted. The court increased the sentence to 3 years and 6 months, with a non-parole period of 1 year and 9 months, finding that this reflected the objective seriousness of the crime and was appropriate for purposes of general and specific deterrence.

The court made a final order that McMaster be sentenced to an aggregate term of imprisonment of 3 years and 6 months with a non-parole period of 1 year and 9 months. This decision aimed to ensure that the sentence adequately reflected the seriousness of the crime committed and the need for appropriate deterrence.

Orders

Orders of the court

Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v McMaster [2020] NSWDC 673
Hearing dates:	22 October 2020
Date of orders:	22 October 2020
Decision date:	22 October 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months
Catchwords:	CRIME — Violent offences — Armed robbery — Dangerous weapon SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Markarian v R [2005] HCA 25 Muldrock v R [2011] HCA 39 R v Henry [1999] NSWCCA 107 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Jordan McMaster (Offender)
Representation:	Shaun Croner (Crown) Lynda Davids (counsel for the Offender) Director of Public Prosecutions (NSW) (Crown) Chandler Legal (Offender)
File Number(s):	2020/00029838