R v McIlwraith

[2025] NSWDC 329

District Court

New South Wales

Medium Neutral Citation:

R v McIlwraith [2025] NSWDC 329

Hearing dates:

12 September 2024; 1 August 2025

Date of orders:

15 August 2025

Decision date:

15 August 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Nathan McIlwraith is convicted.

2 I impose an aggregate term of imprisonment of 6 years with a non-parole period of 3 years to date from 3 April 2024. The non-parole period will expire on 2 April 2027 and the head sentence will expire on 2 April 2030.

3 The offender will be eligible to be released on parole on 2 April 2027.

Catchwords:

CRIME — Drug offences — Possess prohibited drug

CRIME — Property offences — Break, enter and commit serious indictable offence

CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Property offences — Larceny

CRIME — Violent offences — Resist/Hinder police officer in execution of duty

SENTENCING — Relevant factors on sentence — Form 1 offences

Legislation Cited:

Crimes Act 1900

Crimes ((Domestic and Personal Violence) Act 2007

Crimes ((Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Registered Clubs Act 1976

Cases Cited:

Attorney General’s Application No 1 of 2022 ((2002) 56 NSWLR 147

R v Olbrich ((1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Nathan McIlwraith (Offender)

Representation:

Counsel:
B Eurell (Offender)

Solicitors:
Office of the Director of Public Prosecutions ((Crown)
Alpha Law Practice (Offender)

File Number(s):

2023/00233086
2024/00028030
2024/00477970

Publication restriction:

None

JUDGMENT

1. Nathan McIlwraith (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence	Offence	Maximum penalty/SNPP
H96102838/1	Aggravated break and enter and commit serious indictable offence in company contrary to s 112(2) Crimes Act 1900	20 years imprisonment SNPP 5 years
H96384016/1	Break and enter and commit serious indictable offence contrary to s 112(1)(a) Crimes Act 1900	14 years imprisonment
H96384016/6	Larceny contrary to s 117 Crimes Act 1900	5 years imprisonment
H96384016/12	Hinder or resist police officer in the execution of duty contrary to s 60(1AA) Crimes Act 1900	12 months imprisonment and/or a fine of 20 penalty units
H96384016/14	Larceny contrary to s 117 Crimes Act 1900	5 years imprisonment
H96384016/19	Enter dwelling with intent to commit serious indictable offence contrary to s 111(1) Crimes Act 1900	10 years imprisonment
H98994550/3	Enter building and land with intent to commit indictable offence contrary to s 114(1)(d) Crimes Act 1900	7 years imprisonment
H98994550/8	Possess prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act 1985	2 years imprisonment and/or a fine of 20 penalty units
H98994550/9	Aggravated enter dwelling and commit serious indictable offence contrary to 111(2) Crimes Act 1900	14 years imprisonment

2. The offender also asks the Court to take into account the following offences on a Form 1:

1. Unlawful use of club premises by unauthorised person contrary to s 45(1) Registered Clubs Act 1976 (sequence H96384016/7) when dealing with sequence H96384016/6.

2. Stalk/intimidate intend fear of physical harm to a person contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (sequence H96384016/10) when dealing with sequence H96384016/19.

3. Larceny contrary to s 117 Crimes Act 1900 (sequence H96384016/11) when dealing with H96384016/12.

4. Larceny contrary to s 117 Crimes Act 1900 (sequence H98994550/2) when dealing with H98994550/9.

5. Larceny contrary to s 117 Crimes Act 1900 (sequence H98994550/4) when dealing with H98994550/3.

6. Offence while having previous conviction contrary to s 114 Crimes Act 1900 (H98994550/7) when dealing with H98994550/3.

Approach to Sentencing

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters set out in s 21A of that Act.

4. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

5. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties presented three Statements of Agreed Facts. I have taken the entirety of the documents into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Sequence H96384016/1

1 April 2023 – The Corso, Manly

8. At 8:45pm an employee closed the door to the stockroom of the restaurant. At 9:00pm the offender entered the restaurant and opened the closed but unlocked stockroom door labelled “staff only”. The offender picked up multiple bags belonging to staff in the stockroom.

9. Miki Kawai entered the stockroom and observed the offender who quickly exited and ran towards the Corso down an alleyway. Mr Kawai and another employee gave chase.

10. The employees failed to locate the offender and returned to the restaurant at 9:45pm. They returned to the storeroom and found the following property to have been stolen by the offender:

1. $590 in cash from a plastic container and “Tumi” backpack (valued at $950) that contained $3,500 in cash;

2. a bag containing a smartwatch (RRP $18), keys, a wallet (RRP $8) containing $20, a NAB bank card and an adult opal card (retaining $13 credit) and a pink medicine pouch containing a wooden beaded bracelet; and

3. a “Moscot” bag containing a silver and gold “Larry Smith” ring, a turquoise ring, a pair of jeans, a white t-shirt, and silver key attached to a gold keyring.

11. At 10:15pm the employees reported the matter to the police.

Sequence H96102838/1

12 April 2023 – Central Avenue, Manly

12. At about 1:30am a black motor vehicle conducted several laps of Central Avenue in Manly before parking outside the Council carpark. Shayne Wigney exited the vehicle wearing a black tracksuit, fluorescent vest and a white facemask.

13. Mr Wigney signalled to the motor vehicle, which then conducted a three-point turn and reversed on Central Avenue towards him. Whilst reversing, the offender exited the vehicle wearing an orange and grey jacket with hood, dark sunglasses, a blue surgical mask and gloves.

14. The offender walked towards the Manly Minimart side entrance and kicked the glass door twice, smashing the glass panel. The offender and Mr Wigney entered the store.

15. CCTV captured the offender opening the cigarette cabinet and stealing trays containing cigarette packets. The offender and Mr Wigney stole around 60 packets of cigarettes and $350 in cash from the till.

16. The offender and Mr Wigney exited the Manly Minimart through the damaged glass door. They got into the motor vehicle and an unknown driver drove it away from the scene.

17. On 7 November 2023 the offender’s DNA was recovered from one of the two blue surgical masks seized from the street gutter outside the Manly Minimart in close proximity to a plastic tray which had been stolen and left behind at the scene.

Sequence H96384016/6 and H96384016/7 (Form 1)

2 July 2023 – Balgowlah

18. At 10:30pm the offender walked into a member’s only bar/restaurant. The offender was approached by the receptionist, who asked the offender to sign into the club. The offender refused and continued to walk up the stairs to level three. The offender appeared visibly drug affected.

19. CCTV captured the offender walking into the kitchen, picking up and carrying away a black bag that contained a variety of chefs knives (valued at $631.40) being the property of Greg Milner and Hiteshkumar Sutaria. The offender exited the premises in possession of this bag.

Sequence H96384016/14

10 July 2023 – Warriewood mall

20. At 5:11pm the offender entered a retail store and proceeded to the staffroom at the rear.

21. At 5:12pm CCTV captured the offender picking up bags belonging to employees, Jessica Tallentire and Jessica Caldas, and another backpack from a shelf. The offender also rummaged through documents on the store manager’s desk and removed some items from the desk and placed them in the backpack.

22. At 5:13pm Ms Tallentire entered the staffroom and questioned the offender as to what he was doing. The offender mumbled and immediately decamped via a fire escape door in possession of Ms Caldas’ “Uniqlo” bag and “Billabong” tote bag (worth $110). The bags contained air pods, an iPhone 12, various personal and cosmetic items, driver’s licence, bank cards, staff discount cards, sunglasses (worth $250).

23. Police subsequently located and returned all stolen items to the employees except the backpack and staff discount cards.

Sequence H96384016/19 and H96384016/10 (Form 1)

20 July 2023 – Eurobin Avenue, Manly

24. At 4:30pm Tania Tadic left her residence to walk her dog via sliding doors on the western side of the house. She closed the access gate at the front of the residence. It is unclear whether the sliding door was closed or locked.

25. At 6:05pm the offender attempted to open the front gate but it was locked. The offender then walked to the rear, climbed onto a small brick wall and lifted himself over the top of the fence. The offender entered the residence via the glass sliding door. He ransacked the living room and master bedroom.

26. At 6:10pm Ms Tadic returned home and observed the offender standing at the entrance to her bedroom. The offender said “Oh, you are home already?” and walked towards Ms Tadic causing her to fear for her safety. As Ms Tadic ran from the residence, the offender said “You better be careful what you do next”.

27. Ms Tadic ran to the neighbouring property and the offender ran after her. Ms Tadic called the police.

Sequence H96384016/12 and H96384016/11 (Form 1)

20 July 2023

28. Police attended the residence where they observed the offender standing on the roof of the ground floor. As police approached the offender on the roof, he attempted to jump up to the upper level of the residence. Officers rushed to the offender and placed him under arrest. The offender attempted to break free and thrashed around erratically.

29. A search of the offender’s person located multiple items of Ms Tadic including a tote bag, and two sets of car keys.

30. Ms Tadic’s living room and bedroom were left in a severely ransacked state. Police located the offender’s pair of “Alphine star” boots in the living room of the residence.

31. The offender declined to participate in an ERISP.

Sequence H98994550/9 and H98994550/2 (Form 1)

23 December 2024 – Osborne Rd, Manly

32. At 9:30am the offender entered the Spring Cove residential estate in the company of an unknown male.

33. The offender entered the house through an open door after getting into the garage at the rear, also through an open door. The unknown male remained outside on the street.

34. At the time of entry a resident, Bruce Gold, was in the backyard talking to a neighbour.

35. The offender entered the master bedroom and opened various drawers. He removed and stole the following:

1. a freshwater pearl necklace;

2. a silver "Georg Jensen" watch;

3. a pair of red, grey aqua socks;

4. a black leather wallet; and

5. a black “Mercedes" bag.

36. Whilst the offender was in the master , Mr Gold walked upstairs and saw the unknown male peering into his vehicle on the street. Mr Gold confronted the unknown male who responded that he was looking for his friend.

37. At this time, Mr Gold saw the offender exit the property through the front door, possessing the black Mercedes bag. He went into the master bedroom and noticed his black Mercedes bag was missing. He then entered his vehicle and drove around the estate to look for the offender.

38. The offender admitted that he entered the house with intent to steal. At all relevant times he knew that Mr Gold was at the property.

Sequence H98994550/3, H98994550/4 (Form 1) and H98994550/7 (Form 1)

23 December 2024 – Osborne Road, Manly

39. The offender entered the garage and stole an “E-bike” worth $3,850.

40. The offender was confronted by a resident, Chris Bayley, as he attempted to ride the E-bike out of the estate. The offender fell off the E-bike and jogged away.

41. Mr Bayley told the offender to drop the stolen items in his possession. The offender put the scooter down and removed the helmet before dropping the bag. When Mr Bayley attempted to restrain the offender, he resisted and said "leave me alone, let me go, I've had a tough time I've been up for 4 days".

42. The offender was ultimately tackled to the ground by Mr Bayley and two other residents. Police were called.

43. The offender was cautioned and placed under arrest. The items in paragraph [35] were located in the offender's vicinity along with housebreaking implements including black gloves, a small hammer and torch.

44. The offender admitted to entering the garage of the house with intent to commit the indictable offence of larceny.

Sequence H98994550/8

23 December 2024 – Osborne Road, Manly

45. The offender was conveyed to Manly Police Station. He was assessed and transferred to Northern Beaches Hospital due to intoxication. The offender told hospital staff that he had used ice, cannabis and prescription medications.

46. Hospital staff retrieved a resealable bag containing 1g of cannabis leaf and $355 in cash from the offender’s anus. The offender possessed the cannabis for personal use.

Pre-Sentence Custody

47. On 20 July 2023 the offender was arrested and bail refused. He pleaded guilty in the Local Court and was committed for sentence for the offences committed between 1 April 2023 and 20 July 2023.

48. On 11 October 2024 the offender was granted s 11 bail, to reside at Rainbow Lodge and participate in its three month residential rehabilitation program.

49. On 24 November 2024 the offender was remanded back into custody. The offender was excluded from Rainbow Lodge after being involved in an altercation.

50. On 4 December 2024 the offender was granted s 11 bail on a second occasion. Rainbow Lodge supported the offender’s application, telling the Court that the offender’s role was misunderstood and that he was welcome to return to the program.

51. On 20 December 2024 the offender was excluded from Rainbow Lodge after failing a drug test.

52. On 23 December 2024 the offender was arrested for the fresh offences. He has remained in custody since this date.

Sentencing Assessment Report

53. The Court received two Sentencing Assessment Reports (SAR) dated 10 September 2024 and 16 December 2024. These can be summarised as follows.

SAR dated 10 September 2024

54. The offender has a mixed criminal history with numerous offences related to violence, drugs, break and enter and theft. The author of the SAR noted a pattern of non-compliance and extensive misconduct charges during his time in custody.

55. The offender disclosed that he was using a combination of alcohol, heroin, methamphetamines and other prescription medications.

56. The offender was receiving monthly injections of Buvidal in custody.

57. The offender described his offences as impulsive acts of desperation. He claimed a sense of shame around his offending behaviours. The offender downplayed the level of violence throughout his offending. The offender did not acknowledge the greater impact on the community.

58. During his community-based supervision in 2023 the offender was referred to the Violent Offender Therapeutic Program (VOTP). He attended the initial session but did not complete the program.

59. The offender has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Post Traumatic Stress Disorder (PTSD). He was instructed to participate in psychological treatment but did not comply.

60. The offender has been subject to four parole orders over the last 10 years, all of which have been revoked. His response to prior supervision is considered poor.

61. The offender expressed a willingness to undertake community-based interventions and CSNSW Programs. However, the author of the SAR stated his past response to intervention has been unsatisfactory.

62. The offender has been assessed as unsuitable to undertake community service work due to ongoing substance abuse issues and untreated mental health concerns.

63. The offender is assessed as a high risk of reoffending.

SAR dated 16 December 2024

64. The author of the SAR noted that his parole had been revoked. Since his release from custody on 24 March 2023 the offender has refused to engage with the necessary services. The services intended to target the offender’s violent and anti-social behaviours.

65. The offender has been disengaged at supervision interviews and failed to report in person for supervision.

66. The offender has demonstrated aggressive and abusive behaviours at housing and dosing services.

67. The SAR assessed that the offender’s alleged new offences which began shortly after his release and continued until his arrest, demonstrate a clear resistance to be of good behaviour and to adapt to normal lawful life.

68. The SAR concluded that the offender presents as a serious risk of harm to the community. Adequate case management strategies either cannot be put in place of have failed to make an impact on the offender’s pro criminal behaviours and attitudes.

Offender’s Case on Sentence

69. The offender relies on the following documents:

1. psychiatric report of Dr Gerald Chew dated 9 September 2024;

2. psychiatric report of A/Professor Michael Robertson dated 1 March 2022;

3. letters of apology of the offender dated 10 September 2024 and 30 July 2025;

4. Chronology and material relating to housing;

5. letter of Emmanuel Hastings, Mission Australia dated 9 September 2024;

6. Corrective Services – Case Notes;

7. Corrective Services – offender’s Programs/Services Status Reports;

8. Corrective Services – offender’s Work Assignments;

9. Juvenile Movement Record;

10. Illustration of Period Spent in Custody since 2000;

11. medical notes from 11 December 2024 of Dr Rebecca Skidmore;

12. Rainbow Lodge notes from 4 December 2024 to 13 December 2024;

13. letter from Daniil Volodin – Slater and Gordan Lawyers; and

14. letter from Caitlin Stewart – NSW Department of Communities and Justice.

70. The following is a precis of the evidence relied upon by the offender, I will try not to repeat matters in the SARs.

Background

71. The offender had a disrupted childhood. His parents both used heroin and separated soon after he was born. His primary guardian was his maternal grandmother who was an alcoholic.

72. The offender has had no intimate partner relationships of any duration. He has a daughter who he has intermittent contact, with his mother passing away approximately seven years ago.

73. The offender left school in Year 9. His level of education was noted to be equivalent to Year 4. Despite having many difficulties, he demonstrated some capability in sport.

74. The offender reported that he was diagnosed with ADHD in Year 4. He was prescribed stimulant medication which did not help his condition but caused him to have unusual experiences including “seeing dinosaurs in the sky”.

75. The offender experienced the death of his brother in a drowning incident when he was age 12.

76. The offender spent around 18 months in juvenile custody from 1996 to 1999. His initial offending was an attempted robbery with a replica weapon.

71. While detained at Juvenile Justice Centres in Minda and Mount Penang, the offender was sexually abused on multiple occasions between the ages of 15 and 18. He has experienced flashbacks, nightmares and other symptoms.

72. The offender started using drugs and drinking alcohol at a very young age. His drug use escalated following the sexual abuse. He began using methamphetamine in 2008 and has been using it constantly since then.

73. The offender has experienced periods of paranoid psychosis when drug affected and acquired hepatitis C from intravenous drug use.

74. While in custody the offender was resettled on his medication and had been abstinent from illicit substances. He worked as a sweeper and took some courses.

75. The offender has only been in the community less than three years since 2000. This position becomes worse if his periods in juvenile custody are taken into account. He is socially isolated and has limited employment experience.

76. Following his release in 2023, Mission Australia assisted the offender in obtaining his identification documents and receiving housing assistance. The offender’s case was closed after an extended period of no contact.

Remorse and contrition

83. The offender expressed remorse. He stated that being drug free helped him to reflect on the harms to himself, his loved ones and the broader community.

84. In his first letter to the Court the offender expressed a willingness to seek help including attending counselling. He acknowledged that he needs to change his behaviour.

85. In his second letter to the Court the offender explained the circumstances surrounding his breach of s 11 bail. He claimed that he was unfairly removed from the program at Rainbow Lodge twice – after a verbal dispute with another resident and due to a drug test result, he believed was incorrect.

86. The offender stated that he struggled after he left the program. He had nowhere safe to go and felt angry and upset. On the day he was arrested in hospital, he took Rohypnol and Xanax for his anxiety and PTSD.

Psychiatrist reports

87. Dr Chew opined that the offender’s presentation at the time of assessment was consistent with the following diagnosis:

1. Complex PTSD particularly in the context of sexual assaults in Juvenile Justice.

2. Substance Use Disorder having developed as an attempt to self-medicate his psychological symptoms.

3. Cluster B Personality Disorder (borderline and antisocial) in the context of significant developmental adversity.

88. Dr Chew stated that the offender was suffering from these conditions at the time of his offending behaviour. He had limited supports when released from gaol and relapsed into drug use. This affected his judgment and behaviour.

89. Professor Robertson also diagnosed the offender with the same mental health conditions. He opined specifically that the combination of the offender’s presumed traumatic attachment, genetic vulnerability to personality disorder and substance misuse and accumulated advantage in childhood explain his problematic personality development.

90. Professor Robertson opined that the offender has features of institutionalisation with his long and frequent incarcerations. As a result, he is less able to cope with the demands of community living. He requires additional supports for reintegration into the community.

91. Professor Robertson further opined that the offender’s pre-existing mental health conditions make his time in custody more onerous compared to other offenders without mental health conditions. Access to treatment for his condition is also more difficult in custody. The offender has had limited treatment for his various comorbid psychiatric and drug use problems. He requires further psychosocial management.

92. Both psychiatrists recommended that the offender have ongoing psychiatric and psychological therapy, continue his Buvidal medication and remain abstinent from illicit drugs.

Findings on the offender’s subjective case

93. I find it hard to accept the frequency with which the offender alleges that he was sexually assaulted whilst in juvenile custody. I note that the State has settled a claim made by him for the abuse, and I am satisfied that some abuse did occur.

94. The offender is already institutionalised. Having regard to the extent of his incarceration during his adult life he has no coping mechanisms to assist him with living in the community. He will require massive support if he is going to be able to cease offending and to reintegrate into the community.

95. I do not accept the offender’s assertion that he was unfairly treated in his second exclusion from Rainbow Lodge. The notes indicate that the offender was refusing to participate in the program on the basis that he was allegedly ill, with gastroenteritis. In my view, the explanation put forward by the offender was a series of excuses intended to deflect attention away from his decision not to commit to the program. His suggestion that GastroStop was responsible for his positive drug test is ridiculous. I do not believe that he ever intended to act on his suggestion that he would obtain a definitive drug test from a hospital. His behaviour demonstrated a series of excuses and failure to accept responsibility for his own rehabilitation.

Consideration

Objective seriousness

Sequence H96384016/1

96. The offender entered the stockroom which was marked “staff only” and removed about $5,000 worth of property. The offender knew that he may encounter staff members by doing so. The property was not recovered. The offence involved minimal planning.

Sequence H96102838/1

97. The offence involved some planning and was committed in company. The offender took steps to disguise himself to avoid detection. Entry was gained by causing damage to a glass door. The property taken was valued at about $3,000. The offence occurred at night when it was unlikely that many people would be around.

Sequence H96384016/6

98. The offence involved minimal planning. It involved an unlawful entry to the Club for the purpose of stealing property. The offender knew that it was likely that he would encounter people in the course of committing the offence. The value of the property was about $600.

Sequence H96384016/14

99. The offence involved minimal planning. It involved entering a staffroom for the purpose of stealing property. The value of the property taken was about $400.

Sequence H96384016/19

100. The offence involved minimal planning. The offender entered the victim’s house and ransacked the living room and the master bedroom. The offender entered the residence with the intent to commit larceny.

Sequence H96384016/12

101. The offence involved the offender trying to evade the police and resisting arrest when he was captured on 20 July 2023. The offence was spontaneous and did not cause any injury to the police officers.

Sequence H98994550/9

102. The offence involved minimal planning. The offender entered the home of the victim with the intent to commit larceny. The offender knew that the victim was at home.

Sequence H98994550/3

103. The offence involved minimal planning. The offence involved entry into a garage with intent to steal. The offence took place during the day when it was likely that people would be around.

Sequence H98994550/8

104. The amount of the drug of 1g was small. The drug was possessed for personal use.

105. I have taken into account the maximum penalty for each offence and the applicable standard non-parole periods.

Deterrence

106. General deterrence is of significance in this case. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment. 

107. General deterrence may be afforded less weight where an offender suffers from a mental condition, because they are not an appropriate person to be made an example of. The offender suffers from PTSD and personality disorders that have driven him to a serious drug addiction. However, it is clear that the offender understands that his offending conduct is wrong. In all of the circumstances, notwithstanding that his moral culpability is reduced to some extent, the weight to be afforded to general deterrence can only be slightly reduced by reference to his mental condition.

108. There is a need for specific deterrence. The offender has an extensive criminal history and has been incarcerated for the majority of his adult life. He continues to commit crimes that involve breaching the sanctity of people’s homes when they are present. His continued offending makes him a danger to the community. The offender needs to understand by the imposition of the sentence in these matters, that if he continues to commit offences, he will continue to receive condign punishment.

Aggravating factors

109. The offender has a record of previous convictions: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. The offender’s criminal record is extensive and demonstrates a pattern of the same offending conduct.

110. A number of the offences were committed in the home of the victim: s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999.

111. The offences were committed when the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on parole for similar offences when the 2023 offences were committed. The offender was in breach of his s 11 bail conditions when the 2024 offences were committed.

Mitigating factors

112. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to the psychologist and the Court. The offender has accepted responsibility for the offences but is yet to accept responsibility for his own rehabilitation.

113. The offender has some prospects of rehabilitation. In October 2024 the offender expressed a willingness to accept interventions, but given the opportunity, he failed to deliver on that starting point. The offender is reaching an age where he will find prison more difficult to cope with, and hopefully that will bring about the required changes in his behaviour. The sentence imposed on him today will require him to prove to the State Parole Authority that he is ready to be released on parole, by completing rehabilitation courses, remaining abstinent and not incurring misconduct charges.

114. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions may continue to be imposed for some time into the future. I am satisfied that those restrictions have made and will make the offender’s time in custody more onerous. I am also satisfied that the offender’s time in custody has been made more onerous by reason of his mental condition.

Other matters

115. The offender has been in custody from 20 July 2023 to 11 October 2024, 24 November 2024 to 4 December 2024 and 23 December 2024 to date.

116. On 16 August 2023, the offender’s parole was revoked and he was ordered to serve the balance of his parole period in custody, being the period 21 July 2023 to 3 July 2024.

117. I have a discretion to back date the sentence imposed. I note that the offender’s parole was revoked solely by reference to his commission of the offences for which he is to be sentenced. However, taking into account his criminal history, his repeated breaches of parole must result in some additional punishment.

118. I will backdate the sentence that I will impose for these matters to 3 April 2024.

Penalty

119. Nathan McIlwraith is convicted.

120. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other alternatives, that no penalty other than imprisonment is appropriate, except in relation to the possession of prohibited drug offence.

121. For the offence of possess prohibited drug (H98994550/8) I impose no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

122. I make a finding of special circumstances. The offender has been in custody for most of his adult life and is institutionalised. He has serious mental health and addiction issues and will require massive support to assist him to reintegrate into the community. He has reached the point that he must be incentivised to participate in programs in custody and to take steps on his release that will allow him to live in the community. All of these factors in combination justify a considerably longer parole period than might otherwise be appropriate for a person with his criminal history.

123. This is an appropriate matter to impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

Sequence	Offence	Indicative Sentence
H96102838/1	Aggravated break and enter and commit serious indictable offence in company contrary to s 112(2) Crimes Act 1900	3 years with a non-parole period of 18 months
H96384016/1	Break and enter and commit serious indictable offence contrary to s 112(1)(a) Crimes Act 1900	2 years
H96384016/6	Larceny contrary to s 117 Crimes Act 1900 – taking into account the matter on the Form 1	12 months
H96384016/12	Hinder or resist police officer in the execution of duty contrary to s 60(1AA) Crimes Act 1900 – taking into account the matter on the Form 1	3 months
H96384016/14	Larceny contrary to s 117 Crimes Act 1900	9 months
H96384016/19	Enter dwelling with intent to commit serious indictable offence contrary to s 111(1) Crimes Act 1900 – taking into account the matters on the Form 1	2 years
H98994550/3	Enter building and land with intent to commit indictable offence contrary to s 114(1)(d) Crimes Act 1900 – taking into account the matters on the Form 1	2 years
H98994550/9	Aggravated enter dwelling and commit serious indictable offence contrary to 111(2) Crimes Act 1900 – taking into account the matter on the Form 1	3 years

124. I impose an aggregate term of imprisonment of 6 years with a non-parole period of 3 years to date from 3 April 2024. The non-parole period will expire on 2 April 2027 and the head sentence will expire on 2 April 2030.

125. The offender will be eligible to be released on parole on 2 April 2027.

*********

Decision last updated: 21 August 2025