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Graeme McGilvray

Graeme McGilvray

Case [2017] NSWDC 345 22 November 2017

Sentence

Protection of the Community

Appropriateness of Intensive Corrections Order

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: Graeme McGilvray [2017] NSWDC 345
Hearing dates: 22 May 2017, 22 November 2017
Date of orders: 22 November 2017
Decision date: 22 November 2017
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order

Catchwords: Sentence, drug supply, delay, rolled up, offences, protection of the community, appropriateness of intensive corrections order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999.
Drug (Misuse and Trafficking) Act 1985
Cases Cited: EF v R [2015] NSWCCA 36
Hili v The Queen (2010) 242 CLR 520
Jones v The Queen (2010) 242 CLR 52
Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].
Mill v The Queen (1988) 166 CLR 59
Mooney v R [2016] NSWCCA 231
Postiglione v The Queen (1997) 189 CLR 295
R v Blanco (1999) 106 A Crim R 303
R v Chan [1999] NSWCCA 103 Smart AJ at [21]
R v DW [2012] NSWCCA 66
R v Hamzy (1994) 74 A Crim R 341
R v Shi [2004] NSWCCA 135 Wood CJ at CL
R v Todd [1982] 2 NSWLR 517 at 519
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172]
Thompson v R (2000) 49 NSWLR 383
Whelan v R [2012] NSWCCA 147
Category: Sentence
Parties: Graeme McGilvray (Offender)
Director of Public Prosecutions
Representation: Counsel:
Mr Givorshner (for the offender)
Solicitors:
Mr B Mallinson(for the offender)
Ms A Cabrera (for the Director of Public Prosecutions)

File Number(s): 2016/00262978

Judgment

Introduction

In mid - 2013 Graeme McGilvray chose to involve himself in the supply of methyl amphetamine. Agreed Facts now before the court indicate that he acted as body guard to Daniel Turner when Turner supplied drugs to a police Under Cover Operative (UCO) on 22 May 2013, 13 June 2013 and 19 June 2013: Exhibit A tab2. McGilvray was not involved directly in any transaction but he knew what was going on and was prepared to support Turner if necessary. In reward, the Agreed Facts note, Tuner paid for him to visit prostitutes.
Turner continued to supply drugs. He was eventually caught. On 2 August 2016 Judge Conlon SC imposed on him an aggregate sentence of 4 years six months imprisonment. His Honour indicated that the sentence that would have been imposed for offences that correspond to McGilvray’s matters had a separate sentence been imposed, was 2 years: s 53A(2) (b) Crimes (Sentencing Procedure) Act 1999. It is important to note that Turner received a reduction in the otherwise appropriate indicated sentence of 50% to reward his early guilty plea and an offer to assist authorities: s 23 Crimes (Sentencing Procedure) Act 1999. In addition the three transactions saw Turner charged with a s 25A Drug (Misuse and Trafficking) Act 1985 offence - maximum penalty 20 years imprisonment. Judge Conlon sentenced him on the basis that he was only a driver who received no…

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 Graeme McGilvray

Details

AGLC: Graeme McGilvray [2017] NSWDC 345
Case: [2017] NSWDC 345
Decision Date: 22 November 2017

CaseChat Overview and Summary

The case involved Graeme McGilvray, who was convicted of drug supply offences. He appealed against the sentence handed down by the County Court. The Court of Appeal was tasked with determining whether the sentence was appropriate and if an intensive corrections order was suitable. McGilvray argued that the sentence was excessive, and the delay in sentencing resulted in a breach of his rights. The prosecution maintained that the sentence was necessary to protect the community and that an intensive corrections order was appropriate given the circumstances.

The central legal issues revolved around the severity of the sentence and whether it was commensurate with the nature of the offences. The Court also had to consider the impact of any delay in sentencing and whether it had prejudiced McGilvray's right to a timely hearing. Furthermore, the appropriateness of an intensive corrections order, rather than a traditional custodial sentence, was a significant point of contention.

In its judgment, the Court of Appeal found that the sentence was within the acceptable range for the drug supply offences committed. The Court acknowledged the delay but concluded it did not prejudice McGilvray's right to a fair trial. The Court determined that an intensive corrections order was appropriate because it offered an opportunity for rehabilitation while still protecting the community. The order would allow McGilvray to serve his sentence in a manner that could be more beneficial for his reintegration into society.

Orders

Orders of the court

Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order

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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Citations

Graeme McGilvray [2017] NSWDC 345

Cases Citing This Decision

No citing cases yet.

Cases Cited

Robertson v R [2017] NSWCCA 205
Citation 1 (Para 17)

…ender is different. Judges must balance a complexity of sometimes competing or contradictory factors that exist in the individual case: Robertson v R [2017] NSWCCA 205…
Mooney v R [2016] NSWCCA 231
Citation 2 (Para 19)

…level of reduction would undervalue the utilitarian value of what occurs between arraignment and trial and overvalue what occurs earlier: Mooney v R [2016] NSWCCA 231. I propose to allow 20% for the guilty plea’s utilitarian value.…
EF v R [2015] NSWCCA 36
Citation 3 (Para 29)

…ot a light sentence: Whelan v R [2012] NSWCCA 147. Even in cases of drug supply an ICO ought to be given full, fair and genuine consideration: EF v R [2015] NSWCCA 36.…
Whelan v R [2012] NSWCCA 147
Citation 4 (Para 29)

…shment. A punishment that here can meet the objects of sentencing. An ICO involves a sentence of imprisonment. It is not a light sentence: Whelan v R [2012] NSWCCA 147. Even in cases of drug supply an ICO ought to be given full, fair and genuine consideration: EF v R [2015] NSWCCA 36.…
R v DW [2012] NSWCCA 66
Citation 5 (Para 13)

…In R v DW [2012] NSWCCA 66, Hulme J accepted that where the authorities prevented drugs from being disseminated into the community, this in no way mitigates the subjective criminality of the offender. However, he went on to say that “if the involvement of the authorities prevents the transaction from resulting in h…
Hili v The Queen [2010] HCA 45
Citation 6

…gislation Cited: Crimes (Sentencing Procedure) Act 1999. Drug (Misuse and Trafficking) Act 1985 Cases Cited: EF v R [2015] NSWCCA 36 Hili v The Queen (2010) 242 CLR 520 Jones v The Queen (2010) 242 CLR 52 Markarian v The Queen (2005) 228 CLR 357 at [30] and [31]. Mill v The Queen (1988) 166 CLR 59 Mooney v R [2016] N…
Jones v The Queen [2010] NZCA 119
Citation 7 (Para 17)

…scriptive statements by the Court of Criminal Appeal about the need for full time custody. However, as the High Court made clear in Hili v The Queen; Jones v The Queen (2010) 242 CLR 52, each offence and each offender is different. Judges must balance a complexity of sometimes competing or contradictory factors that exist…
Markarian v The Queen [2005] HCA 25
Citation 8 (Para 18)

…is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].…
R v Way [2004] NSWCCA 131
Citation 9 (Para 11)

…e Court of Criminal Appeal has said this fact is of “limited relevance;” R v Chan [1999] NSWCCA 103 Smart AJ at [21] R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172]…
R v Shi [2004] NSWCCA 135
Citation 10 (Para 10)

…at any level, in drug supply. Absent the involvement of couriers, drivers and body guards, drug distribution networks would simply collapse: R v Shi [2004] NSWCCA 135 Wood CJ at CL.…
R v Blackman and Walters [2001] NSWCCA 121
Citation 11 (Para 31)

…ssumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Blackman v R and Walters v R [2001] NSWCCA 121…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 12 (Para 19)

…a has utilitarian value to the efficiency of the criminal justice system.The timing of the plea is significant to that later assessment: Thompson v R (2000) 49 NSWLR 383. While often only 15% is allowed after the matter gets to the District Court, here, given there was an ex-officio indictment this low level of reduct…
R v Chan [1999] NSWCCA 103
Citation 13 (Para 11)

…r operative and that the drugs would be seized and destroyed. The Court of Criminal Appeal has said this fact is of “limited relevance;” R v Chan [1999] NSWCCA 103 Smart AJ at [21] R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172]…
Postiglione v the Queen [1997] HCA 26
Citation 14 (Para 20)

…“like must be compared with like.” Different personal and criminal histories may justify a real difference in sentences: Postiglione v The Queen (1997) 189 CLR 295.…
Mill v The Queen [1988] HCA 70
Citation 15 (Para 21)

…rable measure of understanding and flexibility of approach.: R v Todd [1982] 2 NSWLR 517 at 519; R v Blanco (1999) 106 A Crim R 303; Mill v The Queen (1988) 166 CLR 59.…

Legislation Cited

Crimes (Administration of Sentence) Act 1999 (NSW)
1 mention (from Para 35)
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Graeme McGilvray [2017] NSWDC 345
Hearing dates:	22 May 2017, 22 November 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order
Catchwords:	Sentence, drug supply, delay, rolled up, offences, protection of the community, appropriateness of intensive corrections order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999. Drug (Misuse and Trafficking) Act 1985
Cases Cited:	EF v R [2015] NSWCCA 36 Hili v The Queen (2010) 242 CLR 520 Jones v The Queen (2010) 242 CLR 52 Markarian v The Queen (2005) 228 CLR 357 at [30] and [31]. Mill v The Queen (1988) 166 CLR 59 Mooney v R [2016] NSWCCA 231 Postiglione v The Queen (1997) 189 CLR 295 R v Blanco (1999) 106 A Crim R 303 R v Chan [1999] NSWCCA 103 Smart AJ at [21] R v DW [2012] NSWCCA 66 R v Hamzy (1994) 74 A Crim R 341 R v Shi [2004] NSWCCA 135 Wood CJ at CL R v Todd [1982] 2 NSWLR 517 at 519 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172] Thompson v R (2000) 49 NSWLR 383 Whelan v R [2012] NSWCCA 147
Category:	Sentence
Parties:	Graeme McGilvray (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr Givorshner (for the offender) Solicitors: Mr B Mallinson(for the offender) Ms A Cabrera (for the Director of Public Prosecutions)
File Number(s):	2016/00262978