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 1985Cases 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 147Category: Sentence Parties: Graeme McGilvray (Offender)
Director of Public ProsecutionsRepresentation: 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
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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.
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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…
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- Graeme McGilvray [2017] NSWDC 345
- Case
- [2017] NSWDC 345
- Decision Date
CaseChat Overview and Summary
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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