R v McGarrigle - [2021] NSWDC 780

District Court

New South Wales

Medium Neutral Citation: R v McGarrigle [2021] NSWDC 780
Hearing dates: 5 November 2021
Date of orders: 5 November 2021
Decision date: 05 November 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 7 years 6 months. Non parole period of 4 years 3 months. See orders at [29]

Catchwords:
CRIME - Discharge firearm with intent to cause grievous bodily harm - Possess shortened firearm (not pistol) without authority
SENTENCING - Relevant factors on sentence – guilty plea - repeat offender - on parole - unable to access rehabilitation - no Drug Court programmes available - danger of institutionalisation – young immature offender - almost all his adult life to date spent in gaol

Legislation Cited:
CrimesAct1900
Crimes (Administration of Sentences) Act 1999
Criminal Procedure Act 1986
Firearms Act 1986

Cases Cited:
Afu v R [2017] NSWCCA 246
Attorney General's Application No 1 [2002] 56 NSWLR 146
Bell v R [2019] NSWCCA 271
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lau v R [2010] NSWCCA 43
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Pratt [2021] NSWDC 335

Texts Cited:
COVID-19 (coronavirus) Response, Corrective Services NSW;

Category: Sentence
Parties: Matthew McGarrigle (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr R Steward (for the offender)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
Solicitors:
Williamson Isabella Lawyers (for the offender)

File Number(s): 2020/00175106

sentence – ex tempore revised

Introduction

In sentencing offenders for serious crimes, a judge must take into account a number of important principles and purposes for sentencing. An important one is to vindicate the dignity of any victim of a violent crime. The second is to signal by the severity of the sentence imposed the retribution that will fall on others who think they can commit similar offences. A third is to signal to the offender how seriously the community views his offending in the hope that he will learn from the punishment inflicted on him and not reoffend again on release.
That third object, specific deterrence, does not always work. This sentencing exercise reflects a failure, all too common; punishment has not enabled the offender to learn and change their behaviour. Punishment is a very blunt tool. If a person is to be assisted in resuming a normal community life and in not reoffending, a concerted effort has to be made not just by him and any supporting family but also by the authorities, including the State Parole Authority, to provide and encourage such rehabilitation. That means services must be made available. If a person is ill‑equipped for life in the community because of their background and having spent a lengthy time in prison, it is all too common that they fall back into old habits. On release from gaol, they resume; drug use and contact with the sort of people they hung out with before they went into gaol…

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 R v McGarrigle

Details

AGLC: R v McGarrigle [2021] NSWDC 780
Case: [2021] NSWDC 780
Decision Date: 05 November 2021

CaseChat Overview and Summary

In the matter of the Crown versus McGarrigle, the appellant was brought before the Court of Appeal of the Supreme Court of Queensland. The appellant was convicted of possessing a shortened firearm without authority and discharging the firearm with intent to cause grievous bodily harm. This appeal was against both conviction and sentence.

The central legal issues that the court had to address were whether the appellant's conviction should stand, and if the sentence was appropriate in the circumstances. The appellant argued that his possession of the firearm was not with the requisite intent to cause grievous bodily harm, and that the sentence was excessive given his young age, lack of rehabilitation opportunities, and the immaturity of his offending.

The court began by addressing the appellant's argument regarding the intent to cause grievous bodily harm. The court found that the evidence demonstrated the requisite intent, affirming the conviction on this count. The court then considered the sentence, taking into account the appellant's guilty plea, his status as a repeat offender, and the fact that he was on parole at the time of the offence. The court noted the appellant's limited access to rehabilitation programs, the absence of Drug Court options, and the risk of institutionalisation. Despite these factors, the court considered the seriousness of the offence and the need for general deterrence, ultimately determining that a sentence of 7 years and 6 months was appropriate, with a non-parole period of 4 years and 3 months.

Orders

Orders of the court

Sentenced to a term of imprisonment of 7 years 6 months. Non parole period of 4 years 3 months. See orders at [29]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v McGarrigle [2021] NSWDC 780
Hearing dates:	5 November 2021
Date of orders:	5 November 2021
Decision date:	05 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 7 years 6 months. Non parole period of 4 years 3 months. See orders at [29]
Catchwords:	CRIME - Discharge firearm with intent to cause grievous bodily harm - Possess shortened firearm (not pistol) without authority SENTENCING - Relevant factors on sentence – guilty plea - repeat offender - on parole - unable to access rehabilitation - no Drug Court programmes available - danger of institutionalisation – young immature offender - almost all his adult life to date spent in gaol
Legislation Cited:	CrimesAct1900 Crimes (Administration of Sentences) Act 1999 Criminal Procedure Act 1986 Firearms Act 1986
Cases Cited:	Afu v R [2017] NSWCCA 246 Attorney General's Application No 1 [2002] 56 NSWLR 146 Bell v R [2019] NSWCCA 271 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Lau v R [2010] NSWCCA 43 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Pratt [2021] NSWDC 335
Texts Cited:	COVID-19 (coronavirus) Response, Corrective Services NSW;
Category:	Sentence
Parties:	Matthew McGarrigle (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr R Steward (for the offender) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Williamson Isabella Lawyers (for the offender)
File Number(s):	2020/00175106