R v McGrady

[2021] NSWDC 816

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v McGrady [2021] NSWDC 816

Hearing dates:

24 November 2021

Date of orders:

25 November 2021

Decision date:

25 November 2021

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

At [113]-[116].

Catchwords:

CRIME – fire firearm at a dwelling house – multiple offences – provocation – “taking the law into his own hands” – Bugmy factors – young offender

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Dixon v R [2020] NSWCCA 123

Powell v R [2014] NSWCCA 69

R v Dole; R v Nguyen [2010] NSWCCA 101

R v Kaplantzi [2020] NSWDC 889

R v Karaitaina [2020] NSWDC 691

R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94

R v Quealey [2010] NSWCCA 116

R v Sequera [2021] NSWDC 573

R v Swan [2006] NSWCCA 47

R v Way [2004] NSWCCA 131

Category:

Sentence

Parties:

Crown
Kaylan McGrady

Representation:

Counsel:
Ms Todhunter (Crown)
Mr Doyle (Offender)

File Number(s):

2020/00335297

Publication restriction:

Nil

Index

BACKGROUND

PARITY

SUBJECTIVE FEATURES

CROWN SUBMISSIONS

DEFENCE SUBMISSIONS

PROVOCATION

JIRS STATISTICS AND COMPARATIVE CASES

REHABILITATION

GENERAL DETERRENCE

CONSIDERATION

sentence

1. Boggabilla is a small town on the border of NSW and Queensland approximately 110 kilometres north of Moree. At the most recent published Census, it had a population of only 551, of whom almost two-thirds identified as Indigenous. In the early hours of 23 November 2020 the offender, Kaylan McGrady, was one of a group of young men who drove around a number of streets in the town in the course of a shooting rampage. The occupants of the car had at least two weapons and over a period of approximately 2 hours, numerous shots were fired at a variety of premises in addition to a number of motor vehicles.

2. I will come to the detail of this brief reign of terror when I outline the narrative and background of the circumstances.

3. The present offender appears for sentence with respect to three substantive charges of firing a firearm at a dwelling house with reckless disregard for safety. Such offences arise pursuant to the contravention of s 93GA(1) of the Crimes Act 1900 and carry a maximum penalty of 14 years imprisonment. There is a standard non-parole period of 5 years.

4. Similar charges of firing a firearm in a manner likely to injure a person or property have been placed on a Form 1 document. The offences on the Form 1 were preferred pursuant to s 93G(1)(c) of the Crimes Act 1900 and attract a maximum penalty of 10 years imprisonment if prosecuted separately.

BACKGROUND

5. The background giving rise to the shooting up of the various premises in Boggabilla would appear to have had its genesis in enmity and ongoing personal conflict between Kaylan McGrady and another young man named Adrian Whiteman. The present offender, Kaylan McGrady, was 19 years of age and ordinarily resided at Toomelah Mission. Described in the Agreed Facts as a suburb some 15 kilometres from Boggabilla, Toomelah Station, as it is now officially known, is a small Aboriginal community with a population of several hundred at the site of the former Aboriginal mission. It would appear that the locals still refer to it as the Mission.

6. In the early hours of 23 November 2020, two groups of young men were in the vicinity of Merriwa Street in Boggabilla. The general location in the town might properly be described as semi-rural. At about 12:30am, Adrian Whiteman was sitting in the yard of his residence at 57 Merriwa Street. A group of about 7 young men including the offender and a number of other identified males were in the rear laneway of the residence at 57 Merriwa Street. One of the group yelled to Adrian Whiteman, “Come out here, you motherfucker, I’ll cut you up.” Whiteman responded, “We will have a crack” and went out into the rear laneway where one of the group, Jaymain McGrady, engaged in a fight where each of the protagonists punched each other several times.

7. The fight appears to have rapidly escalated and is described in the Agreed Facts as travelling up the laneway and toward the rear of 46 Brown Street. Those premises would appear to be in the next block. In the course of the fight, a person named as Brogan McGrady told Malcolm McIntosh, who was part of a group associated with Adrian Whiteman: “You’re gone now, you’re gonna get shot.”

8. A man identified as Blake Hippi is described as hearing the sound of the ongoing fight from his home and driving towards it. The Agreed Facts do not reveal where Mr Hippi’s residence was but I would infer that hearing the commotion he got into his vehicle and drove what presumably was not a long distance to the vicinity of the fight. Blake Hippi saw what he estimated as approximately 20 males involved in the fight, some of whom had armed themselves with sticks while others were throwing bottles at each other. He tried to get Adrian Whiteman and two members of his group called McIntosh to stop fighting. They ignored him.

9. 46 Brown Street was the home of Eunice McGrady who is the mother of the offender, Kaylan McGrady. Mrs McGrady called Triple 0 to report the brawl which was taking place at the rear of her premises. Police were informed that Adrian Whiteman, Malcolm McIntosh and another person identified as Lachlan Cubby, had thrown bricks at her house. Police were advised that they had attended armed with knives and sticks. Police arrived shortly after the Triple 0 call. The Agreed Facts indicate that police spoke with Eunice McGrady who said, “Don’t think they’ll be getting away with this.” Another female present yelled out, “You’re not getting away with it, boys.” I would infer that some of the participants in the fight were still present when police arrived.

10. Adrian Whiteman and Malcolm McIntosh were arrested. The Agreed Facts do not indicate whether they were still in the vicinity of 46 Brown Street or whether they were arrested elsewhere after being identified by Mrs McGrady and one of her sons. Whiteman and McIntosh were subsequently conveyed to Moree Police Station where they remained before being formally charged.

11. The Facts then indicate that Wayne Binge was at his home at 1/57 Merriwa Street, Boggabilla. I presume that that was either part of the premises of Adrian Whiteman’s at 57 Merriwa Street, although it may have been a separate and adjacent building. Mr Binge’s partner, Leanne Mackie, and his daughter, Louise Binge, were also present at those premises. Shortly after 2am, Louise Binge went into her father’s room and told him, “Dad, they’re coming.” Mr Binge went out to the front garden of the premises where he saw three boys standing on the street throwing rocks and bottles towards his house. A number of the items thrown hit the house and Mr Binge’s car. Mr Binge returned inside his house and locked the door until the boys had left the vicinity. A short while later, after the three boys had departed, Wayne Binge went out the front of his premises. He noticed that his neighbours, Leah McGrady and David Binge, were outside their home standing on their front porch.

12. At about 3:30am, Kaylan McGrady was captured on CCTV at the Shell Service Station in Boggabilla.

13. The Agreed Facts do not indicate what inference those various facts should lead to.

14. Sometime after 3am, Larissa Hippi was at her home at 67 Yeoman Street, Boggabilla. That residence was several blocks from Merriwa Street. She was related to Malcolm and Anton McIntosh who had been involved in the earlier fight. The Agreed Facts named seven other occupants of the premises who were predominantly from the Hippi family or from a family with the surname Cubby. They included a 12 year-old child. Ms Hippi went outside shortly after 3am when she heard a car driving down Yeoman Street and past her house. From her verandah, she observed a white Mitsubishi Magna sedan travelling at about 20-30 km/hr. She thought she observed 7 people inside the vehicle. Ms Hippi hid behind the tin corner of her house and watched the vehicle circle the block. The Agreed Facts do not disclose how many times it undertook such a manoeuvre.

15. At around 3:30am, a nearby neighbour, a Ms Denison, heard what sounded like a metal pole being dragged down Yeoman Street. She went out the front of her house where she saw the offender, Kaylan McGrady, Brogan McGrady, and a third male person standing at the end of her driveway. Ms Denison told them to leave and the present offender apologised. She then saw him throw a large, thick metal pole into a vacant block adjacent to Ms Hippi’s premises at 67 Yeoman Street. A white Mitsubishi Magna was parked in front of the vacant lot with Brett McGrady seated in the driver’s seat. Ms Denison saw the three young men to whom she had spoken, namely the offender, Brogan McGrady, and the unidentified third male run towards the vehicle. She saw the unidentified male get into the car. She then saw Alexander McGrady standing near the front passenger door. He pointed a large rifle in the direction of Ms Denison. Alexander McGrady said, “She’s a witness.” Kaylan McGrady said something in reply at which time Ms Denison ran inside her house.

16. At about this time, one of the occupants of 67 Yeoman Street was in the backyard of the premises with one of the Cubby family. She saw the Magna stop and a male get out of the passenger side of the car. That male was Alexander McGrady. The woman in the backyard of 67 Yeoman Street, Ms Hickling, saw Alexander McGrady walk towards the front of the premises and then fire a number of shots from the rifle he was carrying at the premises. The occupants who were in the backyard ran inside the house while Alexander McGrady continued firing shots. Members of the family crawled to the hallway of the premises where they called Triple 0.

17. This first episode of shooting is relied upon in support of the second substantive charge brought pursuant to s 93GA(1) of the Crimes Act namely firing a firearm at a dwelling house with reckless disregard for the safety of any person. That charge (Sequence 2) ultimately embraces subsequent shooting at the same premises later in the course of the morning of 23 November 2020.

18. Shortly after the gunshots directed towards 67 Yeoman Street had stopped, Ms Denison and Ms Hippi looked out of their respective houses and saw the white Magna drive down Yeoman Street towards Merriwa Street. Merriwa Street, also referred to as the Bruxner Highway, is parallel to Yeoman Street. The white Magna stopped outside 57 Merriwa Street. Wayne Binge and his daughter Louise, at that time shortly after 3:30am, were standing out the front of their house at 1/57 Merriwa Street. Louise Binge saw that the offender, Kaylan McGrady, was driving the Magna. The offender got out of the vehicle and pointed a rifle at the premises at 57 Merriwa Street.

19. The Agreed Facts indicate that Ursula McGrady recorded a male voice yelling, “Come on motherfuckers, get out here. I will kill you, you dogs. Get the fuck out here! I will kill you, you nannyfuckers.” The Agreed Facts do not provide any enlightenment as to where Ursula McGrady was located. The inference apparently intended in the Agreed Facts is that the male voice was either the offender or someone else from the vehicle he was driving. Louise Binge heard a male voice yell out: “You’re gone too, you slut.”

20. The offender then started shooting towards the house at 57 Merriwa Street. Wayne Binge and his daughter Louise ran to their neighbour’s house. They stood in the dark until they heard the Magna leave the scene. Mr Binge could hear more shooting occurring some distance away. Mr Binge then went back to his house and got the rest of his family who went and hid in the neighbour’s home.

21. This second incident of shooting at a particular premises forms part of the basis for the charge in Sequence 1 which again has been preferred pursuant to s 93GA(1).

22. After leaving the vicinity of 57 Merriwa Street, the offender drove the Magna away from the immediate vicinity. He next came to a stop outside premises at 33 Merriwa Street. That was the address of Gloria Woodbridge and Ryan McGrady. Gloria was the grandmother of Kaylan McGrady’s cousin, his co-offender Alexander McGrady. She was also the grandmother of Clinton Hippi who was described as living there occasionally. Directly over the road was the home of Eleonore Binge who had woken up as a consequence of the loud banging noises and who had gone onto her front verandah at 34 Merriwa Street. She saw the white Magna pull into Merriwa Street and stop in front of the house opposite. Ryan McGrady looked out the window of his premises at number 33 and saw Kaylan McGrady sitting in the driver’s seat of the Magna. A male voice was heard yelling, “Clinton, you motherfucker, Clinton, you motherfucker.” Ryan McGrady saw the offender produce a gun before shooting at the house. After the house had been shot at, the Magna again drove away from the vicinity.

23. The Agreed Facts indicate that after the vehicle left, Eleonore Binge heard Constance Cubby screaming. Constance Cubby was identified earlier in the Agreed Facts as being present that night at 67 Yeoman Street. Those premises were approximately half a kilometre away. The Agreed Facts do not reveal where Constance Cubby was when her screaming was heard by Eleonore Binge. Eleonore Binge then telephoned Larissa Hippi at the premises of 67 Yeoman Street. Larissa Hippi told her, “Bal and the other mission boys was here shooting up the house.” Bal would appear to be the nickname by which Alexander McGrady was known to Boggabilla locals. Eleonore Binge then telephoned police. She subsequently heard further shots being fired.

24. At a later unspecified time, the Magna again returned to 33 Merriwa Street where two further shots were fired at those premises.

25. This shooting at a third premises in Boggabilla resulted in a charge pursuant to s 93G(1)(c), namely firing a firearm in a manner likely to injure a person or property. As indicated earlier, such a charge carries a maximum penalty of 10 years imprisonment. This particular charge (Sequence 8) has been placed on a Form 1 document to be taken into account with respect to Sequence 2, the shooting at 67 Yeoman Street.

26. After leaving 33 Merriwa Street again, the Magna returned to Yeoman Street where it slowed down in front of what is described as the Cubby house, namely 67 Yeoman Street. Ms Denison who had made the earlier observations of the white Magna and who Alexander McGrady had earlier pointed his rifle at, saw Kaylan McGrady seated on what is described as the window frame of the back passenger door of the Magna. He is described in the Agreed Facts as having aimed over the roof of the car and fired his gun at the Cubby house. At the time of that shooting, Alexander McGrady was observed to be sitting in the front passenger seat of the vehicle. The car then drove away from Yeoman Street and Ms Denison continued to hear further shots being fired around the town.

27. This fourth incident of shooting at the same premises which had been shot at earlier forms part of the narrative relied upon to establish Sequence 2.

28. The Magna then returned to the front of the premises at 57 Merriwa Street from which Mr Binge and his family had escaped and hidden in the next door neighbour’s house. More shots were fired at that location which sounded as if they had been aimed at parked vehicles. Wayne Binge could hear the sound of metal being hit and windows smashed. Ursula McGrady recorded this incident of shooting. The Agreed Facts state that the recording makes clear that the Magna continued in motion while the shots were being fired.

29. At 3:58am, Louise Binge telephoned her sister Michelle and told her that the white Magna had pulled up at their premises and that Bal (a reference to Alexander McGrady) and “Brett Boy” were in the car. Louise Binge told her sister that “Bal had a gun.” It is not clear who the reference to “Brett Boy” referred to. Nobody with that given name or nickname is otherwise identified in the Agreed Facts.

30. In due course, after the shooting had stopped for the second time, damage to both the house and garage, as well as vehicles parked at the premises, was observed. There were bullet house discerned in the front wall of the house, as well as bullet holes in the garage with exit holes being apparent out of the laundry. One vehicle had both the front and back passenger windows smashed as well as its back windscreen. A second vehicle had multiple bullet holes as well as the back windscreen and rear passenger side windows being smashed.

31. This second incident of shooting at 57 Merriwa Street forms part of the factual material relied upon to establish Sequence 1.

32. The Magna then returned to the premises at 67 Yeoman Street for a third time. Ms Denison, again observing from her premises in that street, saw Alexander McGrady seated in the front passenger window frame while the offender was seated in the back passenger window frame. Each of the two offenders had a gun. In the absence of any further detail in the Agreed Facts, I would infer that these were again rifles which had been earlier observed. As the vehicle drove past the residence at 67 Yeoman Street, each of the offenders fired three or four shots at the house. The car then sped away from the vicinity. The damage sustained at 67 Yeoman Street included bullet holes in the front of the residence as well as smashed windows and shot up tyres in a motor vehicle at the premises.

33. Another resident at 42 Merriwa Street had also heard the shooting and was standing in front of her house speaking to the police at 4:11am. At that time she saw the white Magna drive down Merriwa Street at approximately 20 to 30 kilometres per hour. As the vehicle passed her, she observed the driver of the vehicle holding a rifle that stuck out through the driver’s window. She observed the rifle to extend beyond the roofline of the vehicle. She also saw a person in the rear passenger side of the car similarly carrying a rifle which stuck out the passenger window and similarly projected above the roofline. As the vehicle drove away in the direction of the Toomelah mission, the car was sounding its horn.

34. This third episode of shooting at 67 Yeoman Street forms part of the factual material relating to Sequence 2.

35. The sequence of shooting at different premises as set out in the Agreed Facts appears to be intended to indicate the order in which the premises were shot at. There is a degree of approximation with respect to some of the times, no doubt based on the recollection of witnesses, although some incidents are able to be more precisely specified by reference to the time at which phone calls were made. Between approximately 4am and 4:30am, a Ms Yina McGrady heard loud bangs outside her home at 2 Racecourse Road, Boggabilla. Those premises are approximately a kilometre away from 67 Yeoman Street. Ms McGrady heard three loud bangs whilst she was lying in bed and she saw a white sedan driving past her house when she looked out a window. The following morning she discovered a bullet hole in the boot of her vehicle.

36. This particular incident of shooting at property was similarly charged as Sequence 3, being an offence contrary to s 93GA(1) of the Crimes Act 1900. It is the third substantive offence in these proceedings.

37. At approximately 4:45am, Michelle Binge heard a car horn being sounded out the front of her house at 139 Merriwa Street. Ms Binge lives at those premises with her daughter, Lola Sharmen, and her daughter’s 3-year-old child. Lola Sharmen was Clinton Hippi’s girlfriend and he was known to stay at those premises regularly. Ms Sharmen looked out of the premises where the car horn was sounding and saw what she described as a vehicle which looked like “Blake’s car.” The Agreed Facts do not disclose what type of vehicle Blake Hippi owned. A white Mitsubishi Magna had been purchased approximately one week earlier by Kaylan McGrady from a person identified as Brendan Talbot for $700. Michelle Binge called out to the occupants of the car, “What do you want?” A male voice responded from the vehicle, “Clint, is Clint there?” Ms Binge denied that Clinton Hippi was at the premises and the car then drove off at speed. As it passed under a streetlight, Ms Binge observed that it was a white Magna. As the vehicle drove off, a shot was fired in the direction of the premises at 139 Merriwa Street. Ms Binge then called Triple 0 and informed police that the car was a white Magna which came from Toomelah mission.

5. This episode of shooting at premises formed the basis of a charge (Sequence 7) under s 91G(1)(c) of firing a firearm in a manner likely to injure a person or property. That offence has been placed on a Form 1 which is to be taken into account with respect to Sequence 2.

6. During the shooting spree, police had received numerous calls which had been made to Triple 0. As noted earlier in these Remarks, officers in Boggabilla had arrested Malcolm McIntosh and Adrian Whiteman after being called to Ms Eunice McGrady’s premises at 46 Brown Street at some time between approximately 12:30am and 1:30am. As noted earlier, they had arrested those two young men and conveyed them to Moree Police Station where they were to be detained. Whether the absence of that police vehicle enabled the marauding shooters to continue to so many residences over the ensuing hours is not clear. However, numerous police vehicles from Moree set off from Moree Police precinct at about 3:30am. Boggabilla is some 110 kilometres to the north.

7. The Agreed Facts indicate that a forward staging point was established at about 4:30am. Two officers set up a police stop on the Newell Highway with the intention of preventing the suspect vehicle from crossing the border into Queensland. As the officers approached the point on Bridge Road, they saw a white sedan come to a sudden stop, immediately perform a U-turn and drive away from the police at speed. The police gave chase but lost the vehicle in the pursuit.

8. The following morning at about 11:10am, police located the white Mitsubishi Magna which had been burnt out in bush near to the Toomelah Mission.

9. Crime Scene Officers subsequently attended Boggabilla and examined various of the premises and vehicles which had been shot at. Four separate vehicles were identified as having suffered bullet damage and detail of damage sustained at the premises at 67 Yeoman St and 57 Merriwa Street was recorded by police.

10. On the afternoon of 23 November, police attended a number of houses at the Toomelah Mission but were unable to locate any of the offenders.

11. Kaylan McGrady was arrested in due course at the Mission on 5 January 2021. A search of the house at which he was located yielded a round of 0.22 calibre ammunition and a black replica pistol in a hallway wall cabinet. He was subsequently interviewed by police in two recorded interviews.

12. In the course of his interviews with police, he initially denied any involvement in the shooting. That first interview was in the presence of his grandmother. A short while later he requested a further interview in which he made a number of admissions.

13. The Agreed Facts set out a summary of admissions and statements in the course of that interview. In short, he outlined that on the 23^rd of November 2020, his mother had called him to say that some boys had come to her house and were throwing rocks and bricks at the house. She told him that they had almost stabbed his cousin. Two of his younger brothers were also in the house and were said to have been scared. Kaylan told police in the interview that this had made him angry and that he had driven from the Mission at Toomelah to his mother’s house in Boggabilla. His brothers had told him, “You can’t let them get away this time.”

14. He told police that he had driven to the service station, filled his car with petrol and then driven straight to Blake Cubby’s house in Yeoman Street where he jumped out and shot at the house. He claimed to have shot the top of the house so that he wouldn’t hit anyone. He described having driven to the school and reloaded before driving to Adrian Whiteman’s house where he again jumped out of the car. He said that Louise Binge was insulting him so he shot at the car and not at the house.

15. He described having driven around town blowing the horn on his car before going back to Whiteman’s house and shooting his car “a couple more times.” He also said he had gone to Shelley’s house asking for Clinton Hippi and had fired another shot at those premises. He said he had gone to the house on Racecourse Road and shot the car because it belonged to Clinton Hippi’s aunt. He said that he also went to Gloria Woodbridge’s house looking for Clinton and fired in the air at those premises.

16. He claimed that he had been alone the entire time and denied that Alex McGrady had been present. He said that he had thrown the gun into the weir before going back to Toomelah where he set his car on fire.

17. Police divers subsequently searched the weir in the approximate location identified by the offender but did not locate any firearm. In circumstances where in the course of submissions counsel appearing for the offender suggested that the description of where the firearm had been placed amounted to a level of assistance, the Court expressed a degree of considerable reservation at that inference being drawn in all of the circumstances. Such reservation was in due course well placed and the Crown indicated, in light of that Defence submission, that two rifles were subsequently at some later time found in a bag in bush and that DNA on at least one of them, linked it to the shooting episode on 23 November. There is, it would appear, a strong inference that the second weapon was also the second weapon found in that bag.

18. I should note in passing that the discovery of what appears to have been the two weapons which were used, is a matter in respect of which this particular offender gets no advantage by virtue of leniency, nor for cooperation with the police in that particular matter. It goes without saying that the sacrifice or disclosure of weapons and their ultimate recovery by law enforcement is regularly a matter of not insubstantial cooperation.

19. I am advised that Alexander McGrady is to go to trial, so I can but presume that if it reflected a level of cooperation, it was from someone other than the two shooters on this occasion, or alternatively, that they were found by virtue of happenstance or by virtue of other information provided to police.

PARITY

53. At the time of these sentence proceedings, the identified co-offender, Alexander McGrady, has apparently been charged and is listed for trial in August 2022. No issue of parity accordingly arises at this stage. The court has not been advised of any other person being charged with respect to the shooting. The two young men arrested earlier in the night in the vicinity of this offender’s mother’s home namely Adrian Whiteman and Malcolm McIntosh were detained by police with respect to summary matters. Whiteman was apparently in breach of bail for other offences and McIntosh was arrested due to his level of intoxication and his aggressive manner in public.

54. The court was advised that police took them from Boggabilla Police Station and conveyed them to Moree for processing. No relevant issue of parity arises with respect to either of those persons. The only relevant observation is that the absence of police from Boggabilla, having taken McIntosh and Whiteman to Moree, may well play some part in an understanding of the apparent absence of police during the extended period of the shootings in Boggabilla.

SUBJECTIVE FEATURES

55. Kaylan McGrady was 19 years of age at the time of this offending. He is now 20. He has a criminal history that commenced in the Boggabilla Children’s Court with respect to a number of instances of riding unregistered motor bikes without a helmet. He also had an appearance and received a bond in the Children’s Court for intentionally throwing an object at a vehicle and for destroying or damaging property.

56. His only conviction in an adult court was approximately 3 weeks before the present offending when he was fined for driving an uninsured and unregistered motor vehicle. In all of the circumstances, notwithstanding these comparatively minor entries, he is essentially a young man of previous good character.

57. A Sentencing Assessment Report reveals a deal of relevant material regarding the offender’s upbringing and background. He has lived with his grandmother who has raised him since birth. He has, however, maintained a relationship throughout his life with his mother. I should indicate that I gather from the overall circumstances that he lives with his grandmother at the Toomelah Mission whilst his mother has a house with some of his siblings in Boggabilla itself. Kaylan McGrady is described as having the support of his family and that his grandmother and aunt are respected elders within the Aboriginal community and that each of them offers sound prosocial and cultural values.

58. Following his arrest in February 2021, he has not received any charges for institutional misconduct. The Community Corrections Officer from the Clarence Parole Unit who prepared the Sentencing Assessment Report recorded the circumstance of the offender being raised in an environment where there is an underpinning level of social unrest and conflict. The circumstance of longstanding feuds within Boggabilla and the Toomelah Mission creating discord among the various residents was also reported. In growing up in such a community, Mr McGrady was exposed to ingrained attitudes towards domestic violence, violent acts and substance abuse.

59. He was perceived by the author of the report, notwithstanding an absence of a history of violent offending himself, as appearing to normalise his use of violence in the index offences in the context of protecting his family. Members of his family reported that Kaylan was not violent by nature. However, it was perceived that he struggled to identify and manage his emotions which would therefore often result in outbursts of anger and aggression.

60. During some interviews, the offender was at times difficult to engage with the Community Corrections Officer and offered limited responses to some questions. However, his engagement with Community Corrections was considered to have been of a good standard and to have been to the best of his ability. He was ultimately assessed pursuant to the Revised Level of Service Inventory as being at a medium/ low risk of reoffending.

61. A report from a forensic psychologist who holds relevant qualifications in both Australia and the United Kingdom, Ms Mamta Sidhu, dated 26 October 2021 was tendered on behalf of the offender. In her detailed report, Ms Sidhu described that the offender has four maternal half-siblings who are respectively two sets of twins. He is the eldest of the siblings. He had effectively no connection with his father after the age of 10 and each of the sets of twins have different fathers. He lived with his maternal grandparents from the time that he was an infant due to his mother’s inability to care for him. He did, however, maintain a relationship with his mother and his half-siblings who remained with his mother. He recalled meeting his father on only 2 occasions as a child as a consequence of his father’s repeated incarceration for armed robbery. He had not seen him from the age of 10 but has recently reconnected with him as a consequence of both being incarcerated at the same correctional facility.

62. Despite, in his words, feeling loved and cared for by his grandparents, he described being exposed to violence where his grandfather would bash his grandmother. He described a strong emotional response to the violence which he observed. On occasion he effectively “blacked out” as a consequence. The psychologist expressed an opinion that this was a dissociative experience which had the effect of protecting himself from experiencing the intensity of his emotional response.

63. The offender struggled with learning at school. He received support from a teacher’s aide but did not attend special classes and had difficulty in reading. He was frequently suspended. He ultimately stayed at school until Year 11 but after leaving school, did not undertake any further study or engage in paid employment. He described helping aunties and uncles in mowing and other tasks around their homes. He had been in receipt of Newstart since leaving school.

64. His continuing struggles to read, which leaves him at a level where he would struggle to read a newspaper impinges on his ability to obtain employment. He struggles with forms and documents due to his poor literacy skills.

65. He has a history of motorbike accidents which have resulted in a variety of injuries. The most severe accident resulted in him being rendered unconscious on an occasion where he came off a motorbike without a helmet. He had a metal plate inserted in his left hand as a consequence of fractures. He described some 5 to 7 motorbike accidents subsequently but said they amounted to “just cuts and scrapes.”

66. He had what appears to have been atypical alcohol consumption by comparison with many of his peers and relatives. He was introduced to alcohol at 18 or 19 years of age. His consumption had become a matter of concern over the following year or so such that he decided to stop drinking alcohol towards the end of 2020. That is, of course, after the offending conduct with which I am concerned.

67. During the same period of time he had also started using ice and cocaine on weekends. He was spending up to $200 per weekend on drugs. He described only using drugs when he was intoxicated with alcohol. This was an additional reason that he determined to stop drinking as it would also mean he would not take drugs. He claimed to have not used either alcohol or drugs since December 2020.

68. He described to the psychologist feeling connected to the land near Moree and the circumstance of his extensive network of aunties, uncles and cousins that he finds loving and supportive.

69. He provided an explanation for his involvement in the current offending which appears to be in parallel to the explanation he provided to police.

70. I should observe in the course of recounting these subjective factors that the explanation that he received a phone call that led to him leaving the Mission and driving to Boggabilla does not sit comfortably with the Agreed Facts that had a group of 7 young men including the offender initially going to Adrian Whiteman’s home at 57 Merriwa Street where there was an invitation to a fight. The subsequent melee or affray ended up some distance adjacent to the offender’s mother’s home. Whether there had been an earlier incident of items being thrown at Mrs McGrady’s house which then led to the confrontation at Whiteman’s home is not clear on the evidence before me, and frankly amounts to a level of speculation as to possibilities, particularly in the absence of any evidence from the offender.

71. The psychologist expressed an opinion that when confronted with a circumstance of members of his family being threatened, the offender saw an opportunity to protect his family and to use violence, this being what he had learned as a child. His earlier deprivation in childhood of adaptive coping skills resulted in him making poor, impulsive and reckless choices which had culminated in the offending conduct.

72. The offender himself had described both to police and the psychologist having had an intention of creating fear amongst those who were causing the threats to his family. Whilst not suffering from any apparent mental condition himself, the level of his emotional neglect, exposure to trauma, and dissociative features meant that he would likely benefit from individual psychological support using what was described as a “trauma-focused lens” with an appropriately trained psychologist. Intervention using a dialectical behaviour therapy approach was perceived as likely to be useful.

CROWN SUBMISSIONS

73. The Crown noted that the plea of guilty was entered in the Local Court and that a 25% discount was therefore appropriate.

74. The objective seriousness of the substantive offences includes with respect to Sequence 2 (67 Yeoman Street) that there were approximately 8 persons in the house including a 12 year-old. The first shots at that house were by the co-offender, Alexander McGrady, while the second flurry of shots were effected by the offender sitting in the window frame at the vehicle and aiming over the roof of the car. On the third occasion, both offenders fired at the house a total of some 3-4 shots each. 6 spent cartridges were recovered by police and entry bullet holes were found in the wall of two bedrooms as well as a glass sliding door. There was damage to a curtain and lounge in the interior of the premises. A parked vehicle was also damaged with shattered windows.

75. The number of shots being fired at the same premises is one of the factors to be taken into account in assessing the objective seriousness. In some instances, the passage of time between the firing of shots may result in separate charges being preferred: see, for example, R v Quealey [2010] NSWCCA 116 where the shooter discharged one shot from a shotgun at the premises before leaving the scene and returning a short while later when a second shot was discharged at the premises. In circumstances where there are repeated shots, during the passage of a single attendance and a subsequent return to the same premises with more shots being fired, (or in the present instance, three separate occasions) the assessment of objective seriousness is not necessarily as straightforward as in cases such as Quealey where the potential danger to occupants was assessed (by some of the judges dealing with that matter) in a different fashion on each occasion. The discharge of bullets towards Yeoman Street involved the first shots being made by a co-offender; the second sequence of shots being effected by the offender; and the third sequence of shots being fired by both young men.

76. The number of shots estimated by witnesses and the number of spent cartridges recovered by police do not correlate. Bearing in mind the number of persons in the house, including a child, the repetitive nature of the attendances, the nature and location of the damage, including the damage to the vehicle, the objective seriousness of this sequence relating to 67 Yeoman Street clearly falls well within an identifiable mid-range of objective seriousness.

77. I note that with respect to this substantive offence, the separate discharge of firearms in a manner likely to injure a person or property are on the Form 1 and are to be taken into account.

78. At the second premises at 57 Merriwa Street, there were two adult persons present at the initial shooting who fled to the protection of their neighbours. Mr Binge subsequently returned to his home to get the rest of his family. It is unclear how many people were in the residence when the shots were first fired. 7 discharged cartridges were subsequently located by police in front of the unit. 2 vehicles had been damaged and three bullet holes were found in the front wall of the house and the garage/ laundry. The objective seriousness of this offence clearly falls below the objective seriousness of the shooting at Yeoman Street. There were two separate incidents at those premises. The offender discharged the shots on the first occasion but it is not ascertained as to who actually fired the shots on the second occasion when the shots fired were apparently directed at the parked motor vehicles. However, this offence would still fall within a broad mid-range of objective seriousness.

79. The third offence at Racecourse Road (Sequence 3) had one person present in the house and 2 shots were fired. It is not clear who fired those shots. This matter would fall, in relation to a perceived range of offending of this type, below the mid-range.

80. The Crown submits that each of the offences are “very serious and involve a high degree of recklessness.” The Crown submitted that the circumstances and motivation would appear to have related to the pre-existing conflict between the present offender and Mr Whiteman. As I raised in the course of submissions, the simplicity of what took place that night deriving from a fight between two of the protagonists appears to me to tell only part of the background story. Much of the activity on the night in question involved attempts to locate Clinton Hippi, notwithstanding that the Agreed Facts do not give any real insight into the cause of such a pursuit of that person.

73. The offender himself told police that the shooting at Racecourse Road was at premises of Clinton’s aunt and that the shooting at “Shelley’s house” was as a consequence of being told that Clinton Hippi was not at those premises. I would infer that the reference to “Shelley” was a reference to Michelle Binge whose house at 139 Merriwa Street was a location where Clinton Hippi stayed regularly. I should note that the only mention of Clinton Hippi in person in the Agreed Facts was that he was part of the group in the yard at 57 Merriwa Street with Mr Whiteman and others when the initial invitation to a fight was extended sometime after 12:30am that morning.

DEFENCE SUBMISSIONS

82. On behalf of the offender, it was submitted that the court would make a positive finding of a level of provocation arising from the throwing of bricks and bottles at the offender’s mother’s home at 46 Brown Street. In his account during the interview with police, and his account to the forensic psychologist, the offender gave an account of having received a complaint from his mother and younger brother about that incident which then caused him to drive from the Mission into Boggabilla as a response.

83. It is difficult to ascertain precisely what occurred factually in the absence of any evidence being called from the offender himself. If the throwing of the bricks and bottles occurred during the melee in the vicinity of 46 Brown Street, some little time after the initial fighting at Adrian Whiteman’s premises in Merriwa Street, the explanation advanced by the offender cannot be right. He is identified in the Agreed Facts as being part of the group who invited Whiteman to participate in a fight in the rear laneway at 57 Merriwa Street shortly before what appears to have been a general affray moved to the rear of 46 Brown Street.

84. However, if the incident described had occurred earlier in the evening and Kaylan McGrady and his colleagues had travelled in the car from the Mission as a consequence i.e. before the confrontation at around about 12:30 in the vicinity of Whiteman’s premises in Merriwa Street, then his explanation may have some veracity.

PROVOCATION

85. To the extent that motivation for an offence, in the form of some level of provocation, is said to affect an assessment of objective seriousness (see R v Way [2004] NSWCCA 131 at [86]), such a factor needs to be balanced by a consideration of the court’s frequent expressions of principle regarding the rule of law and the circumstance of persons taking the law into their own hands.

86. A submission, even implicitly, that the motive for the commission of the offences reduces moral culpability (see R v Swan [2006] NSWCCA 47), needs to be not only understood against the factual matrix of that particular case, but also the NSW CCA’s consideration of that issue since the judgment in Swan. In R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [30], Howie J said:

“…a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case, the motive of the respondents for assaulting the victim was of limited mitigating value.”

87. His Honour said further:

“The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed, the less weight that can be given to motive as a mitigating factor even if it might otherwise have had that effect.”

88. Howie J further pointed out that the existence of a motive for the commission of a crime and the nature of the motive may in some cases point in different directions. His Honour said: “It may, to some degree, mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence.”

89. In R v Quealey Latham J referred to other similar comments regarding persons taking the law into their own hands. Her Honour said this:

25 Similar comments were made by Hall J in Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 at [40] : -

The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of 'vigilante' conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms.

26 Most recently, Johnson J in R v Rayment [2010] NSWCCA 85 said at [106] :-

This Court has emphasised that resort to criminal conduct as a response to some misconduct or crime committed (or believed to have been committed) by the victim is to be severely discouraged. As Adams J observed in R v Elmir [2003] NSWCCA 192 at [20], it is not correct to characterise such conduct as the offender taking “the law into his own hands” - conduct of this type is criminal: Lovell v R [2006] NSWCCA 222 at [70]. In Barlow v R [2008] NSWCCA 96, McClellan CJ at CL observed at [2]:

“The offence committed by the applicant was serious. Motivated by the wrong she believed was previously done to her and accompanied by a male friend, she took the law into her own hands.

90. Her Honour then referred to the detail of that particular crime. Johnson J had continued:

Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts.”

91. Her Honour made final reference to a further judgment of Howie J with whom the Chief Judge at Common Law, McClellan J agreed in R v Dole; R v Nguyen [2010] NSWCCA 101, where his Honour said:

4 Nor do I appreciate how the motive was "perfectly understandable", to quote the sentencing Judge. The courts should give no countenance to such conduct whatever the motivation for it. It is an anathema to the rule of law, which the courts seek to enforce, to have persons like the respondents deciding guilt and punishment upon a member of the community. The sentence needed to be a significant one for the purpose of general deterrence regardless of the subjective cases of the two respondents. There was not the slightest evidence to suggest that either of the respondents did not appreciate the consequences of their conduct.

92. In R v Quealey, Latham J was of the opinion that the submission in mitigation relating to motive for the commission of the offences in that matter explained the conduct but did not reduce moral culpability to any significant degree. General deterrence was of importance in the sentencing exercise and the CCA found no error in the way in which Kellerman SC DCJ had dealt with that issue.

93. I should make it clear that in considering the objective seriousness of the offences in the present matter involving Kaylan McGrady, I am of the view that the suggestion of provocation providing a motive for either retaliation or pre-emptive “scaring” has little work to do in an assessment of the objective seriousness of the offending. I did take it into account in my determination of the level of objective seriousness, but make reference to it at this stage in the remarks.

94. It should be observed that in the essentially Indigenous community in which this level of violence occurred, although physical interaction and violence with inanimate and less serious objects such as sticks, bricks and bottles might be an all too frequent occurrence, the utilisation of force with firearms, whatever motivation may in truth have been behind it, requires particular consideration to issues of general deterrence both in that Indigenous community and at large. There is also a consideration in the present circumstances of specific deterrence.

JIRS STATISTICS AND COMPARATIVE CASES

95. I have had recourse to the blunt instrument provided by the JIRS statistics. To the extent that they provide an indication of a broad range with respect to the offences under section 93 GA(1) it should be noted that there are only 18 cases pursuant to that section which have been dealt with in the higher courts since the 2018 reforms. Head sentences have ranged between three years and 12 years, while non-parole periods have fallen within a range between 18 months and nine years. Such a manifestly wide range does little to provide guidance or assistance in determining an appropriate disposition of the present matter.

96. Whilst acknowledging the sometimes misleading effect of bare statistical analysis, more than 20% of cases have resulted in head sentences of 3 ½ years or less while a little under 20% of cases have resulted in non-parole periods of two years or less.

97. An examination of other sentences imposed in specific cases can, on occasion, provide additional guidance in the sentencing process. No cases which might strictly be described as comparable have been able to be located either by the diligent research of the learned Crown, or by the Court itself.

98. Some cases dealing with this section which have been looked at are as follows:

99. In Dixon v R [2020] NSWCCA 123 the CCA quashed a sentence imposed by Grant DCJ with respect to a reckless shooting at premises in the Green Valley area. Threats which appear to have been connected with an attempt to procure the supply of an unnamed substance from a particular premises, culminated in the discharge of a shotgun which caused the shattering of a window to the premises and minor injuries being sustained by the victim within the premises from splinters of glass. The Judge at first instance had imposed an aggregate sentence of 11 years with seven years non-parole. Offences of using an offensive weapon and possession of shortened firearms received indicative sentences of three years in each case. The offence under 93GA had been given an indicative sentence of seven and a half years with a five non-parole period.

100. The CCA found error in the finding by the sentencing judge that Dixon had in fact been the shooter. The Court was not satisfied that the finding that Dixon was the person who had actually discharged the firearm could be sustained beyond reasonable doubt. Accordingly, the court proceeded to re-sentence on the basis of a joint criminal enterprise. Whilst reducing the possession indicative sentences from three years to 1 year six months in that case the court also reduced the indicative sentence for firing at a dwelling house to 5 years and six months with a non-parole period of three years three months.

101. In R v Karaitaina [2020] NSWDC 691 Colefax SC DCJ dealt with a shooting at a dwelling house contrary to 93GA, accompanied by a possession of shortened firearm on a Form 1 with an indicative sentence of seven a half years with an indicative non-parole period of five years seven months. This was after a 25% discount for plea of guilty.

102. The shooting in that case had taken place in circumstances where the actual shooter had been tricked into shooting at premises which they were led to believe was related to a drug rip-off. In fact the shooting was part of what appeared to be an emotional dispute between lesbian lovers with an elaborate ruse to create the scenario where the person who fired the shots had been led to believe it related to a failed drug supply. In fact the residential house was occupied by a couple and their two young children. The offending in that matter was also accompanied by acts which had been intended to pervert the course of justice involving the production of false medical certificates in a successful attempt to procure Supreme Court bail. There was also the actuality of changing the date of a trial.

103. The offender was found to be substantially more morally culpable than the actual shooter. She had an extensive criminal history of offences of dishonesty together with three separate instances of doing an act to prevent the course of justice. The sentencing judge found the offender to be a profoundly dishonest person and absent any credible, independent and objective evidence did not accept any of the second-hand histories which had been advanced through the psychologists. I am unaware as to whether there was any challenge to the length of that sentence.

104. In R v Kaplantzi [2020] NSWDC 889, Haesler SC DCJ sentenced a young offender who had taken the law into his own hands following a drug “rip-off”. Following a supply by the offender of a small quantity of drugs which were taken from him by force without payment, he returned to the premises and fired a number of shots from a ball-bearing pistol, some of which caused injury to the persons hit. Judge Haesler placed significant weight on the importance of rehabilitation in the personal subjective circumstances of that case and imposed what His Honour described as a “light sentence.” In the event, the section 93GA offence, taking into account a 25% discount, resulted in a sentence of three years four months with a non-parole period of one year nine months.

105. In R v Sequera [2021] NSWDC 573 (22 October 2021), Mahony SC DCJ imposed a sentence of 3 years imprisonment with a non-parole period of 18 months. That sentence followed a 25% discount and a very powerful subjective case. It involved the discharge of a shotgun after the offender had been chased from the gaming room at a hotel in Petersham following what inferentially would appear to have been an intended armed robbery. After fleeing from the gaming room and being pursued by a security guard, the offender fired the gun through a glass panel in a door resulting in a bullet later being found inside the wall of the gaming room. I have not endeavoured to reconcile the apparent conundrum between the reference to a shotgun and the finding of a bullet.

106. In Powell v R [2014] NSWCCA 69 (7 May 2014), the Court of Criminal Appeal dealt with an appeal against severity of a sentence imposed by Judge Conlon of the District Court. Conlon SC DCJ had passed sentence for a number of offences following verdicts of guilty after trial, including one offence contrary to s 93GA(1) of the Crimes Act 1900. Judge Conlon had given an indicative sentence for the discharge of the firearm into a dwelling house of 9 years with a non-parole period of 5 years comprising part of a total effective sentence of 11 years with a total non-parole period of 7 years. The other offences included possession of a weapon with intent to commit armed robbery and a count of larceny.

107. The challenge in the CCA related to the indicative sentence in respect of Count 3. The submissions regarding the severity with which the discharge of the weapon had been dealt with highlighted a number of factors: firstly, there was only one shot fired at the home, only one person was present in the home, and the trajectory of the bullet made the criminal act less dangerous than it might otherwise have been. It was submitted that the offender would not have expected to harm the occupant in light of where that person was in the house when last seen and the low calibre (0.22) of the firearm. Other factors were of lesser significance.

108. Button J indicated a number of factors which were supportive of the error at first instance for which counsel on behalf of the offender had contended. These included that the sentence was the longest of 19 sentences of imprisonment imposed since 2006 for the offence which Justice Button said, “gives one pause for thought about the sentence.” His Honour was accordingly of the view, in combination with other factors, that the sentence imposed exceeded the bounds open to the discretion of the sentencing judge. However, his Honour said that it exceeded those bounds “though not to an extreme degree.” The court granted leave, quashed the sentence on that count, and imposed a sentence of 7 years with a non-parole period of 4 years. The court did not interfere with the level of accumulation that had been imposed at first instance on the other offences. The overall effective date for release would appear to have been reduced by 12 months.

109. None of these cases are strictly comparable with the present matter. There are, as is often the case, relevant factors to be considered in the instinctive synthesis which pull in opposite directions, or as described by Judge Haesler, might seem to be contradictory.

REHABILITATION

110. The significance of rehabilitation for a young offender, and children in particular, is reflected both in general sentencing principles and, in the case of children, in statutory provisions. Kaylan McGrady was only 19 years of age at the time of this shooting rampage. He is entitled to some consideration of leniency, notwithstanding the serious nature of the offending, upon the basis that his prior criminal record is of little significance. His upbringing, in a predominantly Indigenous community, with the recurring features so regularly seen from members of that and other close communities both in Boggabilla and in Moree itself, give rise to relevant considerations of a reduction in moral culpability by virtue of the principles referred to as Bugmy principles.

111. In the present matter prospects of rehabilitation are buttressed to some degree by the letter of support from the men of the Toomelah community.

GENERAL DETERRENCE

112. Other factors, such as the patent escalation in the nature of the violence exhibited on this occasion, the implicit potential for injury or accident, and the clear need for general deterrence, combined with the expressions of principle recognising that such conduct, even if motivated by a level of provocation by other criminal behaviour, is, as described by Justice Hall “the antithesis of what is required in a society based on the rule of law.” The necessity of denunciation requires a delicate balance in the ultimate instinctive synthesis given the youth of the current offender.

CONSIDERATION

113. I make a specific finding of special circumstances to recognise the prospects of rehabilitation, the age of this young man and the overall circumstances of his subjective case. I propose to balance the need for general deterrence with the other relevant factors, particularly including his youth and rehabilitation in a substantial degree of concurrence given that all of the offences, notwithstanding the multiplicity of shootings, occurred in the course of a single effective ongoing series of connected events. To a considerable degree this involved a course of continuing conduct.

114. There is however no alternative to the imposition of a sentence of imprisonment. I propose to proceed by way of an aggregate sentence. Taking into account a 25% discount and taking into account the two matters on the Form 1 with respect to sequence 2, the indicative sentence for the shooting at 67 Yeoman Street, will be a period of six years with an indicative non-parole period of three years.

115. With respect to the two shootings at 57 Merriwa Street, sequence 1, the indicative sentence will be a period of five years with an indicative non-parole period of two and a half years.

116. With respect to sequence 3, the discharge of a firearm at Racecourse Street, I indicate a sentence of three years with a non-parole period of 18 months.

117. Taking into account a substantial level of concurrency, which I believe in all of the circumstances is warranted, there will be a minimum term to be served of three and a half years. The head sentence will be a period of seven years. Accordingly, the sentence will be backdated to commence on 5 January 2021, the minimum term will accordingly expire on 4 July 2024 and the additional term of a further three and a half years will expire on 4 January 2028.

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Amendments

07 September 2022 - 07/09/2022 - Index inserted

07/09/2022 - Heading changed from "Judgment" to "Sentence"

07/09/2022 - "at" changed to "a" in paragraph [73]

07/09/2022 - Heading inserted after paragraph [81] - "Defence Submissions"

07/09/2022 - Heading inserted after paragraph [84] - "Provocation"

07/09/2022 - Heading inserted after paragraph [94] - "JIRS Statistics and Comparative Cases"

07/09/2022 - Heading inserted after paragraph [109] - "Rehabilitation"

07/09/2022 - Heading inserted after paragraph [111] - "General Deterrence"

07/09/2022 - Heading inserted after paragraph [112] - "Consideration"

Decision last updated: 07 September 2022