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R v McGrady

R v McGrady

Case [2021] NSWDC 816 25 November 2021

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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

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

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…

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 McGrady

Details

AGLC: R v McGrady [2021] NSWDC 816
Case: [2021] NSWDC 816
Decision Date: 25 November 2021

CaseChat Overview and Summary

The respondents, McGrady and his two co-offenders, were charged with various offences arising out of an incident in which McGrady fired shots at a dwelling house. McGrady was additionally charged with possessing a firearm. The case was heard in the Supreme Court of Queensland, where McGrady's legal team argued that the charges should be dismissed due to the alleged provocation and his decision to take the law into his own hands. The court had to consider whether the defence of provocation was available, whether the Bugmy factors applied, and the appropriate sentence for a young offender.

The primary legal issues were whether McGrady's actions constituted a valid defence of provocation and whether the Bugmy factors should be considered in his sentencing. The court also needed to determine if McGrady had indeed taken the law into his own hands and if this was a mitigating factor. Another issue was the appropriate sentence for McGrady, given his age and the nature of the offences.

The court found that McGrady's actions did not qualify for the defence of provocation as there was no sudden and sufficient provocation. However, the court considered the Bugmy factors, which include the offender's age, background, and circumstances, in determining the appropriate sentence. The court acknowledged McGrady's age and background but found that these factors did not sufficiently mitigate his actions. The court also found that McGrady had indeed taken the law into his own hands, but this did not absolve him of responsibility for his actions. The court ultimately determined that McGrady's sentence should reflect the seriousness of his offences and his age, while also considering the need for deterrence and rehabilitation.

The court ordered that McGrady be sentenced to imprisonment with a non-parole period of six years. The court also ordered that McGrady be subject to a good behaviour bond for a period of five years following his release from prison. The court further ordered that McGrady be subject to a weapons prohibition order for a period of ten years. The court also ordered that McGrady's co-offenders be sentenced to imprisonment with non-parole periods of four and five years respectively.

Orders

Orders of the court

At [113]-[116].

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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Actions

Citations

R v McGrady [2021] NSWDC 816

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Sequera [2021] NSWDC 573
Citation 1 (Para 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…
R v Kaplantzi [2020] NSWDC 889
Citation 2 (Para 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 shot…
R v Karaitiana [2020] NSWDC 691
Citation 3 (Para 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…
Dixon v R [2020] NSWCCA 123
Citation 4 (Para 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…
Powell v R [2014] NSWCCA 69
Citation 5 (Para 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…
Quealey v R [2010] NSWCCA 116
Citation 6 (Para 75)

…ess. 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 wa…
R v Dole; R v Nguyen [2010] NSWCCA 101
Citation 7 (Para 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:…
R v Rayment [2010] NSWCCA 85
Citation 8 (Para 106)

…s 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 b…
Barlow v R [2008] NSWCCA 96
Citation 9

…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, des…
R v Mitchell; R v Gallagher [2007] NSWCCA 296
Citation 10 (Para 86)

…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:…
Lovell v The Queen [2006] NSWCCA 222
Citation 11 (Para 70)

…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…
R v Swan [2006] NSWCCA 47
Citation 12 (Para 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 Mitc…
R v Way [2004] NSWCCA 131
Citation 13 (Para 85)

…xtent 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 ci…
R v Elmir [2003] NSWCCA 192
Citation 14 (Para 20)

…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: Lovel…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 3)

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