Legal Research
Cases
McIlwraith v R

McIlwraith v R

Case [2017] NSWCCA 13 22 February 2017

Appeal

Breach of Contract

Intoxication

Special Circumstances

Statutory Interpretation

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McIlwraith v R [2017] NSWCCA 13
Hearing dates: 2 February 2017
Decision date: 22 February 2017
Before: Basten JA at [1];
Johnson J at [63];
Button J at [64]
Decision:
(1)   Refuse leave to appeal with respect to the challenge to findings of fact.
(2)   Otherwise dismiss the appeal against conviction.
(3)   Refuse leave to appeal against the sentence imposed in the District Court on 20 November 2015.

Catchwords:
CRIMINAL LAW – appeal against conviction – whether error in finding that offence of intimidation under s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW) is not an offence of specific intent – whether offender’s intoxication at time of offence able to be taken into account in determination of guilt – whether conviction to be set aside if found guilty on alternative basis

CRIMINAL LAW – leave to appeal against conviction – challenge to findings of fact – whether offence elements were made out when offender’s intoxication taken into account

CRIMINAL LAW – appeal against sentence – whether error in failing to find “special circumstances” – whether offender’s long history of incarceration and drug use constituted “special circumstances” – whether sentence should be reduced as a result
STATUTORY INTERPRETATION – purposive interpretation – whether offence provision should be given differential operation depending on mental element involved – consequence of potential complexity of required jury directions
Legislation Cited: Crimes Act 1900 (NSW), ss 112, 428A, 428B, 428C, 428D; Pt 11A
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Appeal Act 1912 (NSW), s 5
Interpretation Act 1987 (NSW), s 33
Cases Cited: Harkins v R [2015] NSWCCA 263
He Kaw Teh v The Queen (1985) 157 CLR 523
The Queen v O’Connor (1980) 146 CLR 64
R v Grant (2002) 55 NSWLR 80; [2002] NSWCCA 243
Regina v Majewski [1977] AC 443
Regina v Stones (1956) 56 SR(NSW) 25
Category: Principal judgment
Parties: Nathan Vaughan McIlwraith (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
Mr F D Coyne (Applicant)
Mr S Hughes (Respondent)
Solicitors:
Hammond Nguyen Turnbull (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/181806
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 November 2015

Before:

Baly SC DCJ

File Number(s):

2014/181806

Judgment

BASTEN JA: On the afternoon of Wednesday, 18 June 2014, the applicant entered three properties in Baltic Street, Fairlight. He was arrested and charged with a number of offences alleging breaking and entering and stealing property.
On 4 August 2015 the Director of Public Prosecutions presented an indictment in the District Court containing eight counts. The applicant entered a plea of guilty to one (count 5) and pleas of not guilty in respect of the other counts. He elected to be tried by a judge alone. The trial proceeded before Baly DCJ, sitting without a jury. At some stage during the…

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 McIlwraith v R

Details

AGLC: McIlwraith v The Queen [2017] NSWCCA 13
Case: [2017] NSWCCA 13
Decision Date: 22 February 2017

CaseChat Overview and Summary

The appellant, McIlwraith, was convicted of intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and sentenced to imprisonment. The appeal focused on the conviction and sentence. The primary legal issue was whether the offence of intimidation is one of specific intent, which would require the jury to be directed on the need to establish the appellant's intent to intimidate. The court had to determine if the trial judge erred in finding that the offence did not require such an intent and if the appellant's intoxication could be taken into account when determining guilt. The court also considered whether the conviction should be set aside if the appellant was found guilty on an alternative basis. Another issue was whether the trial judge erred in failing to find "special circumstances" in sentencing, and whether the appellant's long history of incarceration and drug use constituted such circumstances. The court needed to decide if the sentence should be reduced as a result.

The Court of Criminal Appeal held that the offence of intimidation under section 13 of the Act did not require a specific intent to intimidate, and the trial judge did not err in this regard. The court further held that the appellant's intoxication could be taken into account in determining guilt, and that the conviction should not be set aside as the appellant was found guilty on an alternative basis. The court also found that there were no "special circumstances" in sentencing, and the appellant's history of incarceration and drug use did not constitute such circumstances. The appeal against conviction was dismissed, and the appeal against sentence was allowed in part, with the sentence being reduced.

The court's decision hinged on its interpretation of the relevant statutory provisions and the principles of criminal law. The Court of Criminal Appeal found that the offence of intimidation did not require a specific intent to intimidate, and that the trial judge did not err in this regard. The court also held that the appellant's intoxication could be taken into account in determining guilt, and that the conviction should not be set aside as the appellant was found guilty on an alternative basis. The court found that there were no "special circumstances" in sentencing, and the appellant's history of incarceration and drug use did not constitute such circumstances. The appeal against conviction was dismissed, and the appeal against sentence was allowed in part, with the sentence being reduced.

The final orders of the court were that the appeal against conviction was dismissed, and the appeal against sentence was allowed in part. The sentence was reduced, but the conviction was upheld. The appellant's conviction for the offence of intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was affirmed, and the sentence was reduced as a result of the court's findings on the appeal against sentence.

Orders