CITATION: R v Gavin William McGAW [2007] NSWDC 33 HEARING DATE(S): 22/02/2007
JUDGMENT DATE:
22 February 2007EX TEMPORE JUDGMENT DATE: 22 February 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: See paragraphs [37], [38], [39], [40], [41] & [42] CATCHWORDS: Criminal law - Sentence - Detaining for purposes of advantage - Assault - Joint enterprise - Aiding and abetting aggravated sexual assault LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: Crown
Gavin William McGawFILE NUMBER(S): 06/21/1091 COUNSEL: M Barr (Crown)
B Hancock (Offender)SOLICITORS: NSW DPP
Nikola Velcic & Associates
SENTENCE
1 HIS HONOUR: Gavin McGaw appears for sentence today after having pleaded guilty to five very serious offences. When sentencing him for two of those, the fourth and fifth on the indictment, he asks that I take into account other matters on two separate Forms 1. I will take them into account as indicating a greater need for deterrence and retribution than would otherwise be the case.
2 The relevant events all occurred in the one episode of criminality. It was a period of disgraceful criminality. It involved the abuse of a young man for nothing more than the malicious, gratuitous and cruel enjoyment of a number of people. The young man was abused, and treated as inhuman, with no thought being given to his welfare by those involved, (with one qualification to which I will make reference later on).
3 On the evening of 2 August 2005 the offender was with a number of other young people, the oldest of whom was twenty and the youngest of whom was fourteen. The offender was eighteen himself and he was with his nineteen year old sister as well.
4 This group of people became friendly with a young man by the name of DS. He was only sixteen years of age. He was invited to go to a nearby unit with the group to drink some alcohol that they had agreed to purchase. Once there things were initially friendly and amicable between the group and DS.
5 However, without any apparent reason, a man by the name of Kenneth Dickson, he being the twenty year old, became aggressive. He approached DS and punched him to the face with a closed fist. He fell to the floor and when he tried to get up he was pushed down again. Mr Dickson continued to kick and punch into the complainant, including hitting him in the head.
6 This, not surprisingly, upset DS to the extent that he started to cry. Rather than creating any feelings of empathy on the part of anyone who was there, everyone seems to have almost delighted in the harm that was being caused to him.
7 The youngest of the group, a boy by the name of LK, joined in the assault on DS, punching and kicking him, including while he was on the ground. The offender was one of those who was present and watched what was going on. He watched the complainant…
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- AGLC
- R v Gavin William McGaw [2007] NSWDC 33
- Case
- [2007] NSWDC 33
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court addressed were the severity and nature of the crimes committed by McGaw, his role in the offences, and the appropriate punishment that would serve justice and deterrence while also considering his youth and potential for rehabilitation. The court also had to consider the principle of proportionality in sentencing, ensuring that the punishment fits the crime, and the principles of individualised justice, which require a sentence tailored to the circumstances of the offender and the offence.
In reaching its decision, the court carefully weighed the aggravating and mitigating factors presented. The offences were serious, involving violence and sexual assault, but McGaw's youth and lack of prior criminal history were significant mitigating factors. The court determined that a combination of fixed and non-parole periods would be appropriate, reflecting the seriousness of the crimes while also providing McGaw an opportunity for rehabilitation. The sentences imposed were designed to balance public safety, deterrence, and the rehabilitative needs of the offender.
The final orders included a series of fixed and non-parole terms for each count, ensuring that McGaw's release would be closely monitored and supervised, thereby protecting the community. The sentences reflect a comprehensive approach to justice, addressing both the need for punishment and the potential for McGaw's rehabilitation.
Orders
Orders of the court
[special circumstances in this case relate to the offender's youth, that this is his first time in custody, and that he has good prospects of rehabilitation. He will be assisted, and so the community will benefit, upon his release from custody for an extended period of supervision on parole] Sentencing: On Count 1 on the indictment I sentence the offender to a fixed term of one year to date from 12 August 2005; On count 3 on the indictment I sentence the offender to imprisonment for a fixed term of one year to date from 12 February 2006; On count 4 on the indictment the offender is sentenced to imprisonment for a fixed term of one year to date from 12 August 2006.
Those are fixed terms because of other sentences I will shortly announce.
On count 5 of the indictment I set a non-parole period of eighteen months with a head sentence of three years to date from 12 February 2007; On count 2 of the indictment I set a non-parole period of one year with a head sentence of three years to date from 12 August 2007; The non-parole periods of counts 5 and 2 will thus expire on 11 August 2008 on which day the offender is eligible to be released to parole. Those sentences on counts 4 and 5 are taking into account the matters on the Forms 1.
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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