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

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

The offender also asks the Court to take into account the following offences on a Form…

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 McIlwraith

Details

AGLC: R v McIlwraith [2025] NSWDC 329
Case: [2025] NSWDC 329
Decision Date: 15 August 2025

CaseChat Overview and Summary

In the case of R v McIlwraith, the accused, Nathan McIlwraith, faced charges stemming from a series of criminal activities that included drug possession, property offences, and resisting police. The case was heard in a higher court, where the defendant contested the allegations against him. The court had to determine whether McIlwraith was guilty of the drug possession, breaking and entering with intent to commit a serious indictable offence, and resisting a police officer in the execution of their duties.

The central legal issues revolved around whether McIlwraith had indeed possessed a prohibited drug, entered a dwelling-house with the intent to commit a serious indictable offence, and resisted a police officer. Additionally, the court needed to consider whether the circumstances of the offences warranted any aggravating factors. These factors were critical in assessing the appropriate penalty for the defendant.

In delivering the judgment, the court meticulously evaluated the evidence presented and concluded that McIlwraith was indeed guilty of the charges. The court found that the evidence was sufficient to prove the drug possession, the breaking and entering with intent to commit a serious indictable offence, and the act of resisting a police officer. The court also found that certain aggravating factors were present, such as the intent to commit a serious offence and the resistance to lawful authority. These findings led the court to impose a sentence of 6 years imprisonment with a non-parole period of 3 years. The court determined that McIlwraith would be eligible for parole on 2 April 2027, with the head sentence expiring on 2 April 2030.

Orders

Orders of the court

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.

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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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

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