New South Wales Supreme Court CITATION : R v Glen Jeffrey McCormack [2003] NSWSC 1139 HEARING DATE(S) : 24 October 2003 JUDGMENT DATE : 14 November 2003 JURISDICTION: Common Law Criminal JUDGMENT OF : Sperling J at 1 DECISION : The offender is sentenced as follows: In relation to the third charge (stealing motor vehicle), to a term of imprisonment of one year and eight months commencing on 16 January 2002, with a non-parole period of one year and three months expiring on 15 April 2003; In relation to the fourth charge (use motor vehicle as an offensive weapon), taking account of the offence on Form 1, to imprisonment for three years and six months commencing on 16 July 2002, with a non-parole period of two years, seven months and two weeks expiring on 1 March 2005; In relation to the second charge (possess unlicensed pistol) to imprisonment for three years and eight months commencing on 16 October 2003, with a non-parole period of two years, three months and two weeks, expiring on 1 February 2006. The earliest date on which he will be eligible for release on parole is 1 February 2006. CATCHWORDS : Criminal Law - Sentencing - no question of principle Crimes Act 1900, s33E, s154AA LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s3A, s21A Firearms Act 1996, s7 PARTIES : Regina Glen Jeffrey McCormack FILE NUMBER(S) : SC 70049/02 COUNSEL : Mr R Herps for the Crown Mr D Dalton for the Accused SOLICITORS : Director of Public Prosections Freemans Solicitors for the Accused - 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Criminal Sperling J Friday, 14 November 2003 70049/02 Regina v Glen Jeffery McCormack Remarks on Sentence 1 Sperling J: The offender, Glen Jeffrey McCormack, was charged as follows: 1. On 28 December 2001 at Hinchinbrook in the State of New South Wales did murder Andrew McIntyre. 2. On 28 December 2001 at Hinchinbrook in the State of New South Wales did possess a .32 calibre Mauser semi-automatic pistol without being authorised to do so by licence or permit contrary to the Firearms Act 1996 s7(1), maximum penalty imprisonment for 14 years. 3. On 5 January 2002 at Cabramatta in the State of New South Wales did steal a motor vehicle registered number WNZ446, the property of Joseph Pulo, contrary to the Crimes Act 1900, s154AA(1), maximum penalty imprisonment for 10 years. 4. On 16 January 2002 at Lurnea in the State of New South Wales did use an offensive weapon, namely a motor vehicle registered WNZ446 with intent to prevent his lawful apprehension contrary to the Crimes Act 1900, s33E(1), maximum penalty imprisonment for 12 years. 2 On 24 July 2003 the offender was acquitted by direction at a trial limited to the first charge. He has pleaded guilty in relation to the other charges. He asks the Court to take into account on sentence the following further offence, namely custody of a knife. 3 The offender was born on 3 December 1967. 4 A Probation and Parole Service report indicates that the offender was reared in a disruptive and violent family atmosphere, due mainly to his father's abuse of alcohol, the children being subjected to both physical and verbal abuse by their parents, mainly by their father. The offender was unruly as a child. He was expelled from high school for unmanageable behaviour while in first form. He was placed in a Boys' Town institution which he left before turning fifteen. He became a heavy drinker and later a heroin user. Apart from some unskilled work before the age of eighteen he has never been employed. 5 Since turning eighteen, the offender appears to have spent more time in prison than out. The offender was in custody for nine months following conviction as a juvenile and had served some thirteen years in prison since that time as at December 2001. His crimes have consisted mostly of property and drug offences. They also include assaulting a prison officer and escaping from lawful custody. 6 According to the Probation and Parole Service report, the offender joined the methadone program in 2001 and later that year gradually ceased to use methadone also. After committing the subject offences, he returned to using heroin. He now claims to be drug free and is receiving a daily dose of Buprenorphine. 7 The offender was last released from prison prior to these events on 28 July 2001. His period of parole was not due to expire until 19 May 2002. 8 Following his release in July 2001 the offender lived with his sister. He was also keeping company with Ms Natalie McDonough. The offender was the father of one of Ms McDonough's children from an earlier relationship. That child lived with her. As at December 2001, Ms McDonough had recently given birth to another child, of whom the deceased, Andrew McIntyre, was the father. 9 It is apparent from the Probation and Parole Service report and from the evidence given at the offender's trial on the charge of murdering Mr McIntyre that the relationship between the offender and Ms McDonough was one of close friendship rather than of a physically intimate nature. The offender was frequently at the house following his release in July 2001. Ms McDonough was pregnant and unwell at that time. The offender gave her considerable assistance during her pregnancy and also assisted in caring for the children. 10 There was a history of violence on the part of the deceased towards Ms McDonough and the offender. On more than one occasion the deceased had attacked the offender. These were serious assaults. The offender had acquired a handgun (giving rise to the second charge) which he hid at Ms McDonough's house against the threat of further violent behaviour on the part of the deceased. 11 On 28 December 2001 the deceased entered the house against Ms McDonough's protests, intent on attacking the offender again. The offender retreated to the laundry and armed himself with the gun. The deceased confronted the offender. The offender shot and killed him. The offender immediately fled, returned the gun (as I find the facts) to the person from it had been obtained, stole a car (giving rise to the third charge) and remained at large until 5 January 2002. On that date, he was apprehended and arrested by the police (at which time events occurred giving rise to the fourth charge). At the time of his arrest, the offender was found to be in possession of a knife (giving rise to the offence on Form 1). 12 According to the Probation and Parole Service report, the offender appeared to do well during the short time that he was out of gaol prior to the shooting. That appears to be so. The subject offences arose out of the events of 28 December 2001. They cannot be seen as a continuum of the pattern of criminal behaviour which marked the offender's life up to the last of the periods of imprisonment prior to these events. 13 The offender has been in custody since 16 January 2002. The Second Charge, Observations 14 In relation to the firearm offence, the offender obtained the gun rather than go to the police with a complaint concerning the deceased's behaviour and the threat which the deceased posed to Ms McDonough and himself. He gave as his explanation that an apprehended violence order, taken out by Ms McDonough against the deceased, had not been effective in preventing further violent behaviour on the part of the deceased towards her. He also said that he did not want to bring charges against the deceased because the family situation involving, as it did, the association between the deceased and the deceased's son who was living with Ms McDonough. 15 Although the offender may have rationalised his behaviour in this way, the true reason for obtaining the gun rather than going to the police is more likely to have been that the offender had no rapport with authority and would probably have expected an unsympathetic response from the police. That having been said, the offender's decision to arm himself with a gun illegally rather than go to the police was the wrong choice, involving, as it did, the criminal offence with which he has been charged. 16 This is a very serious offence. General deterrence is an important consideration in view of the proliferation of unlicensed handguns in the community and the trade in them for unlawful purposes. 17 The fact that the deceased was shot and killed with the gun is not an aggravating factor. That was the consequence of the offender having a gun but it was not a consequence of the offender having a gun without a licence. The Crown, properly in my view, acceded to this approach. 18 Necessarily, the offence involved planning. It was a considered decision to commit the offence. However, I accept that the offender did not acquire the gun in order to commit crimes with it. This is a significant consideration. The Third Charge, Observations 19 There is a need for special deterrence in relation to this offence. The offender had committed the same and similar offences on earlier occasions. I would infer that the theft of the motor vehicle involved planning. The Fourth Charge, The Facts 20 At the trial relating to the first charge, a statement by Senior Constable T Leonard was tendered by the Crown and admitted into evidence without objection. Relevantly, the statement was in the following terms. (Coincidentally, one of the police officers had the same surname as the offender.) About 12.55pm, Wednesday the 16th January 2002, with Sergeant NAVIN and Senior Constable McCORMACK, as a result of information received I went from Bass Hill to the Green Valley area. About 1.05pm when in Hill Street Lurnea I saw the defendant Glen McCORMACK driving a silver Toyota, registration number TDR-876 along Hill Street towards Hoxton Park Road. Sergeant NAVIN did a U-turn and drove a short distance behind McCORMACK'S vehicle. McCORMACK stopped at the lights at the intersection of Hill Street and Hoxton Park Road. Sergeant NAVIN drove the police vehicle onto the intersection and stopped the vehicle directly in front of McCORMACK'S vehicle. Senior Constable McCORMACK and I began to get out of the vehicle. McCORMACK appeared to look directly at us and accelerated from a stop position directly at us. I pulled my legs back into the police vehicle just before the collision but Senior Constable McCORMACK was unable to do so and his legs were half out of the police vehicle as McCORMACK collided with our vehicle. Senior Constable McCORMACK screamed out. 21 In his ERISP, the offender gave the following account of that episode, so far as is relevant. Q16 Can you tell me what happened then, your version? A. Well, I was parked at the lights weightin'(sic) for the lights to change and I noticed a police car comin' around so I attempted to take off and smashed into the police car. Q17 So you smashed into the police car? A. Uh huh. 22 The following is an extract from the evidence given by the offender at the trial concerning that episode. In cross-examination, the offender gave the following evidence: Q. Just finally, you have heard some statements read regarding when you were arrested and you bringing your vehicle that you were in into contact with the police vehicle? A. Yes. Q. What happened then? A. I'd gone up to the shops and got something to eat and everything and I was on my way back to the flat. And I got down to the lights and I've got to go left. And I'm parked there and I notice this white Commodore behind me but it was reverse. There was like a bus or something parked beside me. CROWN PROSECUTOR: Could I just interrupt. The date? Are we talking about 16 January? DALTON: Yes, 16 January. WITNESS: But, like, in the left-hand lane you've got to turn left and in the other lane you've got to turn right. And I noticed the car keep jerking, going like that (indicating). It was trying to get out and then I realised it was the police. So I started to look around and I seen a couple of other cars down the road a bit further. So I've took off and when I took off they'd already come around the bus and stopped and I've run into them. 23 In cross-examination the offender gave the following evidence: Q. What was the problem, you say, with the car that it was jerking in the fashion that you have described? A. The police car was - it couldn't just turn around to go around. I was parked - I was sitting there. They were behind me. There was another vehicle beside us and to get around that vehicle that had to reverse back, come forward so they could go around (indicating). Q. You were aware then that it was the police there? A. Yes. Q. You were aware that they were after you at that stage? A. Yes. Q. Why didn't you just stop the car and get out? A. Because I didn't want to. Q. Isn't it the case that in reality you made a decision to try and escape from that situation? A. Yes. Q. And you used the car in order to do that? A. I attempted to, yes. Q. You attempted to use the car as a weapon to force your way out past the police? A. No. Q. No? A. No. Q. Well, what I'm putting to you is that what you did was this: You knew the police were there and then you accelerated from a stopped position directly at them? A. No. Q. No? A. No. 24 The plea of guilty to the fourth charge is an admission of the necessary elements of the offence. That includes use of the motor vehicle as an offensive weapon. It was common ground at the bar table that the plea of guilty did not necessarily imply that the accused intended to bring his motor vehicle into collision with the police vehicle. I agree with that. The offence would be made out, in circumstances such as the present case, if the vehicle was driven recklessly in the sense of risking a collision without care or regard to whether that would occur. 25 Senior Constable Leonard's statement does not give rise to a necessary inference that the collision was intentional. The offender's account of what occurred is more detailed. It is not inconsistent with Senior Constable Leonard's account and I accept it. 26 According to the offender, the police vehicle was manoeuvred from behind the offender's vehicle, around another vehicle adjacent to that of the offender, and was brought into a position in front of the offender's vehicle where it stopped. The offender had the police vehicle under observation during this time. He recognised the police vehicle for what it was when he first saw it behind him. 27 It appears that the accused moved off at about the same time as the police vehicle came into a position in front of him. In these circumstances, it was on the cards from the offender's perspective that the police vehicle would stop in front of him to block his escape. The offender moved off nonetheless, prepared to risk a collision and without regard to the risk that a collision would occur. 28 Damage to the police vehicle was not substantial; the recovery claim is for less than $2000. Senior Constable McCormack's injury was not substantial either. He was treated by an ambulance officer for a laceration and was off work for a period of three days. There is no suggestion of any permanent disability. That having been said, however, it has also to be noted that personal injury and damage to property could readily have been far more serious as a consequence of the offender's reckless conduct. 29 There are special considerations in relation to offences involving harm or threatened harm to police and other public officers performing dangerous work in the interests of the community. Society has a strong interest in protecting such persons against suffering harm or the threat of harm in the course of their duties. It is important that the penalties for such offences should be severe enough to operate as a deterrent against such offences being committed by others. Whilst it cannot be expected that prospective offenders will be aware of the precise level of sentences imposed by the courts for any particular kind of offence, let alone the sentence imposed in a particular case, it is important that potential offenders be aware, in a more general way, that there is a regime of sentencing in place which is sufficiently severe to make them think twice and possibly not commit the crime at all. 30 It is also relevant, however, that in this case the offence was unplanned and the element of recklessness rather than conscious intent places the offence towards the lower end of offences in terms of culpability. Offences Committed While On Parole 31 These offences were committed while the offender was on parole. That is an aggravating factor and operates to increase the sentences which would otherwise have been appropriate. Having implemented that consideration, I propose to commence the sentences from the date of the offender's arrest on 16 January 2002. Contrition 32 The only direct evidence of the offender's state of mind in this respect appears in the Probation and Parole Service report, namely, that the offender stated that he "cannot change or do anything about what has happened but feels horrible". This, no doubt, refers to the shooting of the deceased. It is not surprising that in the circumstances that has been the focus of the offender's thoughts concerning the whole course of events. I then note the following passage in the report: In the past he has blamed everyone else for being in gaol but is now starting to accept responsibility for his actions. This augurs well for his future. 33 I accept that the offender has an appreciation of the wrongfulness of his conduct following the shooting. The pleas of guilty are further evidence of that. Pleas Of Guilty, Discount 34 In relation to the offences for which the offender is now being sentenced, the offender made full admissions when apprehended and should be taken to have pleaded guilty to the offences at the earliest practicable time. I propose to allow a discount of twenty per cent for the utilitarian value of the pleas. Statutory Considerations 35 I recognise the purposes for which a court may impose a sentence on an offender, as specified in s3A of the Crimes (Sentencing Procedure) Act 1999 being as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 36 Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides as follows: Aggravating, mitigating and other factors in sentencing. (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence of the offence. 37 I respond to s 21A(2) as follows: (a), (b) and (c) Yes, in relation to the fourth charge only. (d) Yes (e) to (h) No. (i) Yes, in relation to the fourth charge only. (j) Yes. (k) to (m) No. (n) Yes, in relation to the second and third charges. 38 I respond to s 21A(3) as follows: (a) Yes. (b) Yes, in relation to the fourth charge. (d) to (f) No. (g) I cannot say yes to this. The most I can say is that, in view of what appears to have been good behaviour since his last release from prison, I would not find against the offender that he is likely to re-offend. (h) Yes, having regard to his behaviour since last release from prison. (i) Yes. See above. (j) No. (k) Yes. (l) Yes. (m) No. Totality 39 In setting a regime of sentences for these offences, I have regard to the principle of totality, it being necessary to ensure that the total regime of sentences is an appropriate response to the totality of the criminality involved in them. The offences are not part of the same episode but they are, in a sense, part of the one course of conduct. It is appropriate, therefore, that there should be accumulation but not totally so. Sentencing Methodology 40 My methodology in fixing a regime of sentences is as follows. I will first state the regime of sentences I would regard as appropriate but for the pleas of guilty. I will then discount the total time spanned by the sentences by twenty per cent for the pleas of guilty. That will require an adjustment to the sentencing regime otherwise appropriate. I will then consider the question of special circumstances and the effect of that consideration. Sentences But For Pleas Of Guilty 41 But for the pleas of guilty, I would set a regime of sentences as follows: o In relation to the third charge (stealing motor vehicle), a term of imprisonment of one year and eight months, commencing on 16 January 2002, with a non-parole period of one year and three months, expiring on 15 April 2003. o In relation to the fourth charge (use motor vehicle as offensive weapon), taking into account the offence on Form 1, a term of imprisonment of three years and six months, commencing on 16 July 2002 with a non-parole period of two years seven months and two weeks, expiring on 1 March 2005. o In relation to the second charge (possess unlicensed pistol) a term of imprisonment of five years, commencing on 16 October 2003 with a non-parole period of three years and nine months, expiring on 15 July 2007. 42 With the element of accumulation in the above regime of sentences, the term of imprisonment spanned by these provisional sentences is six years and ten months. Adjustment For Pleas Of Guilty 43 I discount the term of imprisonment spanned by these provisional sentences by approximately twenty per cent to five years and six months, expiring on 15 June 2007. 44 I implement that adjustment by reducing the sentence in relation to the second charge (possess unlicensed pistol) from five years to three years and eight months so as to expire on that date, 15 June 2007. Adjustment To The Parole Period Under The Sentence Relating To The Second Charge 45 Under the provisional statutory formula, the non-parole period under the sentence in relation to the second charge would expire on 15 July 2006. That would be the earliest date on which the offender would be entitled to be released on parole under this regime of sentences. It is, however, appropriate to bring that date forward so that the offender will be eligible for release after a period representing three-quarters of the total time spanned by the sentences after applying the discount for the pleas of guilty. I find this consideration to constitute special circumstances. 46 The non-parole period in relation to that sentence, so adjusted, is two years three months and two weeks, expiring on 1 February 2006. 47 In the result, the minimum time to be served under this regime of sentences is four years one month and two weeks. 48 It has been submitted on behalf of the offender that a lengthier period under supervision on parole relative to what would otherwise be the case is appropriate because of the length of time the offender has served in prison to date and will have done under the sentences now to be imposed. I make no further allowance for this consideration, being of the view that the period under supervision on parole will be adequate to optimise the prospect of rehabilitation. Sentences 49 In the result, the offender is sentenced as follows: o In relation to the third charge (stealing motor vehicle) you are sentenced to a term of imprisonment of one year and eight months, commencing on 16 January 2002 with a non-parole period of one year and three months, expiring on 15 April 2003. o In relation to the fourth charge (use motor vehicle as an offensive weapon), taking account of the offence on Form 1, you are sentenced to imprisonment for three years and six months, commencing on 16 July 2002 with a non-parole period of two years seven months and two weeks, expiring on 1 March 2005. o In relation to the second charge (possess unlicensed pistol) you are sentenced to imprisonment for three years and eight months, commencing on 16 October 2003 with a non-parole period of two years three months and two weeks, expiring on 1 February 2006. 50 The earliest date on which you will be eligible for release on parole is 1 February 2006. -o0o- Last Modified: 12/22/2003 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.