Regina v G M McNally [1999] NSWCCA 449

Procedural Posture

Criminal Law Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

1. 1 ['Whether the sentencing judge erred by giving too much weight to evidence of co-offender Mr Cole concerning responsibility for use of the gun.' 'Whether the sentencing judge erred by attributing a greater role and criminality to the applicant than to Mr McHamish.' 'Whether the sentence imposed on the applicant was heavier than that imposed on co-offender Mr McHamish contrary to the principle of parity and such as to give a justifiable sense of grievance.' "Whether special circumstances should have been found in respect of the applicant's sentence." 'Whether, even if sentencing error were established, a lesser sentence was warranted.']

Ratio Decidendi

The appeal was dismissed because, even assuming error in the sentencing process, a lesser sentence was not warranted. The affray was a very serious instance of the offence: the victims were terrorised for hours, threatened with violence and death, and the applicant remained complicit after the gun was produced. His criminal responsibility was not materially less than Mr McHamish's, and any apparent disparity was explained by the applicant's more serious criminal history, the operation of totality in Mr McHamish's sentence, and Mr McHamish's epilepsy. No special circumstances were established because the existing additional term adequately allowed for supervised rehabilitation.

Court Disposition

Leave to appeal granted; appeal against sentence dismissed.

Orders

• ['Leave to appeal is granted.' 'The appeal against sentence is dismissed.']