New South Wales Court of Criminal Appeal CITATION : Regina v G M McNally [1999] NSWCCA 449 FILE NUMBER(S) : CCA 60694/98 HEARING DATE(S) : 06/12/99 JUDGMENT DATE : 6 December 1999 PARTIES : Regina v Garry Michael McNally JUDGMENT OF : Sperling J at 2; James J at 1 & 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/41/0310 LOWER COURT JUDICIAL OFFICER : Bell DCJ COUNSEL : (Applicant): A Webb (Crown): L M B Lamprati SOLICITORS : (Applicant): T A Murphy (Crown): S E O'Connor CATCHWORDS : CRIMINAL LAW - appeal against sentence - no decision on asserted error in sentencing process where a lesser sentence not warranted in the opinion of the appellate court. ACTS CITED : Crimes Act 1900 Criminal Appeal Act, 1912 Astill (2) (1994) 64 A Crim R 289 Cocking (1999) NSW CCA 311 CASES CITED: Isaacs (1997) 90 A Crim R 587 McDermott (1999) NSW CCA 379 Oestler (NSW CCA, 7 October 1992, unreported) DECISION : Leave to appeal granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60694/98 JAMES J SPERLING J MONDAY 6 DECEMBER 1999 REGINA v GARRY MICHAEL McNALLY JUDGMENT 1 JAMES J : The Court is in a position to give judgment and I will call on Sperling J to give the first judgment. 2 SPERLING J : The applicant pleaded guilty to one count of affray and one count of assault before Bell DCJ at the Moruya District Court on 22 October 1998. He was sentenced to a minimum term of two years and three months penal servitude and an additional term of nine months on the first of those counts, together with a fixed term of six months on the second count, to be served concurrently. 3 The crime of affray is codified in section 93 C of the Crimes Act, 1900 as threatening unlawful violence by conduct that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. 4 The maximum penalty for that offence is five years penal servitude. The maximum penalty for assault pursuant to the Crimes Act, 1900 (section 61) is two years imprisonment. 5 The applicant seeks leave to appeal against those sentences. 6 The background to the offences is common ground to a large extent. The applicant had been employed on a property owned by Mr and Mrs Saunders. He had left personal effects and furniture on the property. The offences were committed when the applicant returned to the property to collect his possessions. He arranged for friends to accompany him. These included Aaron Rudolph McHamish and Ronald Keith Cole. 7 There was nothing particularly sinister about that in itself because there was a good deal to be removed. However, on being admitted to the property, the Saunders were harassed and terrorised. Mr McHamish produced a gun which was pointed repeatedly at the Saunders. On the account of events given by Mr Saunders, Mr McHamish appeared to have played the more active role in what then occurred. However, on any view of the facts, the applicant engaged in serious verbal abuse directed towards the Saunders and, on any view of the facts, both men threatened the Saunders with death. 8 In the course of these events, the applicant also threatened to strike Mr Saunders with a crow bar. The harassment and threatening went on for some hours. Mr and Mrs Saunders believed they were in serious physical danger. I do not doubt that they believed they could die. Mrs Saunders was crying and was plainly terrified. Both suffered continuing deleterious effects. 9 Bell DCJ also sentenced Mr Cole, on the same date as the sentencing of the applicant. On an earlier occasion, Mr McHamish was sentenced by Howie J. 10 On 22 October 1998, Mr McHamish was sentenced by Howie DCJ for certain unrelated offences, as well as for offences arising out of the subject episode. For supplying a prohibited drug, he was sentenced to imprisonment for a minimum term of twelve months and an additional term of twelve months. For possession of a prohibited weapon, he was sentenced to a fixed term of one month to be served concurrently, and for assault he was sentenced to a fixed term of four months to be served concurrently. Mr McHamish was then sentenced by Howie DCJ for offences arising from the subject episode, which were cumulative on the minimum term of twelve months for supply a prohibited drug. The additional sentences were: for affray, a minimum term of twelve months and an additional term of twenty months; for assault, a fixed term of nine months to be served concurrently; for possession of a firearm, a fixed term of six months to be served concurrently; for possession of a firearm and entering land, a fixed term of nine months to be served concurrently. Howie DCJ made clear that he had applied the principle of totality and that the sentences should not be regarded as appropriate for the respective offences if considered in isolation. 11 Mr Cole was sentenced by Bell DCJ to 300 hours community service for affray. 12 The applicant submits that the sentencing judge erred in the following respects: (a) in giving too much weight to the evidence of the co-offender Mr Cole concerning responsibility for use of the gun; (b) in attributing a greater role and criminality to the applicant than to Mr McHamish; (c) in imposing a sentence upon the applicant heavier than that imposed upon the co-offender, Mr McHamish, contrary to the principle of parity and such as to give the applicant a justifiable sense of grievance; (d) failing to find special circumstances in respect of the applicant's sentence. 13 As to the relative responsibility of the applicant and Mr McHamish, Bell DCJ found as a fact that, as the group was preparing to depart, the applicant directed Mr Cole to open the gate and to get the gun from Mr McHamish which Mr Cole did, passing the gun to the appellant who put the gun on the parcel shelf at the back of one of the vehicles. 14 In the course of his remarks on sentence, his Honour recorded a concession by the solicitor who appeared for the applicant at the sentencing hearing to the effect that the solicitor accepted on his client's behalf that the applicant was the leader of the group. I would not over emphasise that concession. It does not necessarily imply that the applicant exercised the dominant role in everything that happened at the property. 15 Bell DCJ drew certain inferences from his finding concerning the replacement of the gun in the car. The inferences were that the applicant was entitled to possession of the gun and therefore had knowledge of the gun's presence at the outset of the episode. The applicant submits that those inferences were unjustified. 16 If error in the sentencing process is established by the applicant, this Court would set aside the sentence and would resentence the applicant unless it were of the opinion that a lesser sentence is not warranted. Section 6 (3) of the Criminal Appeal Act, 1912 provides that, on an appeal against sentence, the Court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution, and in any other case shall dismiss the appeal. Relevantly, for the purposes of this appeal, it is only if a lesser sentence is warranted that this Court has jurisdiction to allow an appeal against the severity of sentence (see Oestler , NSW CCA 7 October 1992 unreported); Astill (2) (1994) 64 A Crim R 289; Cocking (1999) NSW CCA 311; McDermott (1999) NSW CCA 379.) 17 In the present case there is, in my opinion, no need to resolve the question of error in the sentencing process, because I am of the opinion that a lesser sentence would not be warranted if the applicant were resentenced afresh by this Court. 18 The offence of affray is a serious offence. It carries a maximum penalty of five years penal servitude. This was a serious instance of that offence, a very serious instance. The victims were terrorised over a period of some hours and were threatened with physical violence and death. The applicant was complicit in everything that occurred. He knew the gun had been produced and continued to participate in the harassment of the victims under those circumstances. 19 There was some evidence before his Honour that Mr McHamish had in fact been hired to do what he did on the occasion. On the basis of that evidence, it would be reasonably open to infer that he had been hired to do what he did by the applicant. But even without that factor, the whole of the operation on the property was for the applicant's purposes. He could have called it off if he did not like the way it was going, assuming that it developed in a way he had not intended. The fact that he did not take that course or object to Mr McHamish's conduct at any stage is affirmative evidence that the applicant was complicit in the way Mr McHamish behaved. 20 It does not seem to me in the circumstances that the applicant's criminal responsibility for what occurred can be regarded as materially less than that of Mr McHamish. 21 As to the principle of parity, the sentence imposed on Mr Cole is not of any material relevance because of his much lesser role in the episode. As to the relativity between the other two sentences, two things are to be observed: First, the criminal histories of the applicant and Mr McHamish are very different. The applicant had been convicted of the following serious offences: Drive in a manner dangerous; possess unlicensed pistol; malicious injury (for which the applicant was sentenced to eighteen months imprisonment with a non parole period of nine months); high range prescribed concentration of alcohol; possess unlicensed firearm (three counts of the same offence); assault; and breach of an apprehended violence order (for which the applicant was sentenced to a fixed term of one month imprisonment). This criminal history demonstrates an unruly and irresponsible attitude characterised by a propensity to violence. By contrast, Mr McHamish had not been convicted of any offence involving violence and the most serious offences of which he had been convicted were high prescribed concentration of alcohol and being a disqualified driver (for which he was fined and disqualified for a period of years). He had never been sentenced to imprisonment. 22 Secondly, the sentence imposed by Howie DCJ on Mr McHamish had been reduced under the principle of totality because of the cumulative nature of the offences imposed on that occasion. As Howie DCJ pointed out, the sentence was less than would have been imposed in isolation. 23 Another distinguishing factor was that Mr McHamish had come to suffer epilepsy to such a degree that Howie DCJ took that into account as a factor requiring leniency. 24 I have had regard to subjective considerations which arise from the material which was before the sentencing judge. I have also noted the affidavit producing further material to be taken into account in the event that this Court were to resentence the applicant. I have had regard to those additional matters. 25 I would give credit for the plea of guilty, insofar as it saved the community the expense of a trial. I have also had regard to the fact that the applicant has obviously made earnest efforts to overcome a long standing problem with alcohol, that he has been a cooperative prisoner, and that he has participated in personal rehabilitation programs. He is to be commended for those efforts. There is, in my view, notwithstanding a shocking criminal history, a good prospect of rehabilitation if the applicant adheres to his present attitude. 26 I do not regard the sentence imposed on the applicant as disproportionate to the sentence imposed on Mr McHamish, having regard to the considerations which I have mentioned in that regard. 27 Counsel for the applicant has advanced a very thorough and a very carefully prepared argument. Nothing has been left unsaid that could possibly have been said in the applicant's favour. However, in my opinion, a sentence less than the sentence imposed on the applicant in the Court below for the offences for which the applicant has been convicted is not warranted. 28 I do not find special circumstances. It seems to me that the additional term under the existing sentence, which complies with the statutory formula, is adequate for supervised rehabilitation following the minimum term of imprisonment. 29 my opinion the appeal should be dismissed. The orders I propose are as follows: Grant leave to appeal, appeal dismissed. 30 JAMES J : I agree with the judgment of Sperling J. To the authorities relating to section 6 of the Criminal Appeal Act mentioned by his Honour, I would add R v Isaacs , (1997)90 A Crim R 587. In R v Isaacs , the Court was constituted by a bench of five Judges, including the Chief Justice, the President of the Court of Appeal and the Chief Judge at Common Law. In that case the Court found that the sentencing Judge had erred in the manner in which he ascertained the facts for the purpose of ascertaining an appropriate sentence. However, the Court dismissed the appeal against sentence, observing: "If we had to undertake the task of sentencing afresh and resentencing the appellant, we would impose a sentence no less than that imposed by Newman J." 31 If it were necessary to decide whether the inference drawn by the sentencing Judge that the applicant had prior knowledge of the gun's presence prior to departing from Moruya was an inference which was capable of being drawn, then I would be of the opinion that, even if the inference was not capable of being drawn solely on the basis suggested by his Honour, then the inference was capable of being drawn when regard is had to certain parts of the evidence of Mr and Mrs Saunders which was drawn to our attention by counsel for the Crown. It is apparent from his Honour's remarks on sentence that his Honour generally accepted the evidence of Mr and Mrs Saunders. 32 As I have said, I agree with the judgment of Sperling J and with the orders proposed by his Honour. 33 The orders of the Court will be that leave to appeal is granted but that the appeal against sentence is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.