District Court
New South Wales
Medium Neutral Citation: R v McNally [2025] NSWDC 333 Hearing dates: 26 June 2025 Date of orders: 26 June 2025 Decision date: 26 June 2025 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months
Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
MENTAL HEALTH — Criminal proceedings — Defence of mental illness — Offender elected criminal jurisdiction
SENTENCING — Aggravating factors — Home of victim or any other person
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of his or her actions because of the offender’s age or any disability — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Mental illness — Dangerousness — Assistance to law enforcement authorities considered
SENTENCING — Subjective considerations on sentence — Drug addiction — Severe mental health issues — Schizophrenia
Legislation Cited: Crimes Act 1900 (NSW)
Crimes(Sentencing Procedure) Act 1999 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited: Browning v R [2015] NSWCCA 147
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R [2022] NSWCCA 156
Engert v R (1995) 84 A Crim R 67
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
Paterson v R [2021] NSWCCA 273
R vGeddes (1936) 36 SR (NSW) 554
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Category: Sentence Parties: Jay Robert McNally (the offender)
Director of Public Prosecutions (NSW) (Crown)Representation: Counsel:
Solicitors:
E Renard (for the offender)
Tony Cullinan Lawyers (for the offender)
K Malcolm solicitor for Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2024/38622
JUDGMENT – ex tempore revised
Introduction
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On 22 January 2024 a disturbing incident occurred at a quiet hamlet on the New South Wales South Coast. Jay McNally, while armed and floridly mentally ill, entered two homes intending to commit serious offences. Thankfully, the residents of both homes were not present, but what occurred, it is acknowledged, must have had, and…
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- AGLC
- R v McNally [2025] NSWDC 333
- Case
- [2025] NSWDC 333
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the mitigating and aggravating factors relevant to sentencing, particularly the defendant's mental health condition and the seriousness of the crime. The court had to determine whether the defendant's mental illness should be considered a mitigating factor, despite his election to be tried in the criminal jurisdiction. Additionally, the court needed to weigh the aggravating factor of the home invasion against the mitigating factors presented.
In reaching its decision, the court meticulously examined the mitigating and aggravating factors. It acknowledged the defendant's plea of guilty, his good character, and the absence of prior convictions. However, it also recognised the severity of the crime, the fact that it occurred in the victim's home, and the defendant's drug addiction and mental health issues. The court ultimately decided that while these factors warranted consideration, the objective seriousness of the offence and the need for deterrence necessitated a custodial sentence. The court sentenced the defendant to an aggregate term of imprisonment of three years and six months, with a non-parole period of one year and nine months.
Orders
Orders of the court
Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months
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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