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
Le v R [2019] NSWCCA 181
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 Henry [2007] NSWCCA 90
R v Israil [2002] NSWCCA 255
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Verdins [2007] VSCA 102
R v Windle [2012] NSWCCA 222
R v XX [2017] NSWCCA 90
Stobinski v R [2025] NSWCCA 97
Tepania v R [2018] NSWCCA 247
Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629

Category: Sentence
Parties: Jay Robert McNally (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
E Renard (for the offender)
Solicitors:
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

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…

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 McNally

Details

AGLC: R v McNally [2025] NSWDC 333
Case: [2025] NSWDC 333
Decision Date: 26 June 2025

CaseChat Overview and Summary

The case of R v McNally involved the defendant, who was charged with breaking and entering with intent to commit a serious indictable offence. The dispute arose in the context of the defendant's mental health, particularly his schizophrenia and drug addiction, which he claimed influenced his actions. The matter was heard in the higher courts of Australia.

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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Citations

R v McNally [2025] NSWDC 333

Cases Citing This Decision

No citing cases yet.

Cases Cited

Stobinski v The King [2025] NSWCCA 97
Citation 1 (Para 47)

…ffecting the offender than those that go to objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [63]-[96]; see most recently Stobinski v R [2025] NSWCCA 97.…
DS v R; DM v R [2022] NSWCCA 156
Citation 2 (Para 47)

…culpability involves a consideration of a wider set of factors affecting the offender than those that go to objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [63]-[96]; see most recently Stobinski v R [2025] NSWCCA 97.…
Paterson v R [2021] NSWCCA 273
Citation 3 (Para 24)

…the commission of the offence. McNally’s schizophrenic illness and the disorder that he was suffering from must be taken into account: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; N eal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325]; Cheung v The Queen [2001] HCA 67;…
Le v R [2019] NSWCCA 181
Citation 4 (Para 19)

…ender participates in a recorded interview and makes admissions about the offence does not amount to assistance within the meaning of s 23(1): Le v R [2019] NSWCCA 181 at [53]-[54], [56]; Browning v R [2015] NSWCCA 147 at [123]. In any event, there was sufficient evidence to arrest and detain the offender. He certai…
Tepania v The Queen [2018] NSWCCA 247
Citation 5 (Para 24)

…s schizophrenic illness and the disorder that he was suffering from must be taken into account: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; N eal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325]; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [55]-[56] [171]-[17…
R v XX [2017] NSWCCA 90
Citation 6 (Para 20)

…sition of a lesser sentence. There are two reasons for that; the first, is the decision depends on the application of the criteria in s 23(2): R v XX [2017] NSWCCA 90 at [56]. Secondly and importantly here, after the application of 23(3) any lesser penalty must not be unreasonably disproportionate to the nature and…
Browning v R [2015] NSWCCA 147
Citation 7 (Para 19)

…s admissions about the offence does not amount to assistance within the meaning of s 23(1): Le v R [2019] NSWCCA 181 at [53]-[54], [56]; Browning v R [2015] NSWCCA 147 at [123]. In any event, there was sufficient evidence to arrest and detain the offender. He certainly cooperated with the police and his admissions e…
Weinstock v Beck [2013] HCA 14
Citation 8 (Para 23)

…complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time”: Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629.…
R v Windle [2012] NSWCCA 222
Citation 9 (Para 51)

…As Justice Basten J reminded us, care has to be taken in such matters : R v Windle [2012] NSWCCA 222. The potential for ‘unprincipled sentencing’ under the guise of community protection, particularly where the mental illness operated to reduce an offender’s moral culpability, has to be guarded against. His Honour no…
Muldrock v The Queen [2011] HCA 39
Citation 10 (Para 22)

…it. As the High Court made clear, I do not engage in a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120 at [28].…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 47)

…culpability. I was referred to the seminal decision of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. I have said in other judgments, which I will not go to in any detail, that the first principle at [177] may need to be revisited in the light of recen…
Courtney v R [2007] NSWCCA 195
Citation 12 (Para 2)

…es are committed, and there is no doubt these were serious crimes. These problems have been described as “to an extent intractable”: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1] (Basten JA). They require “sensitive discretionary decisions”: Engert v R (1995) 84 A Crim R 67 (Gleeson CJ).…
R v Verdins [2007] VSCA 102
Citation 13 (Para 56)

…The Court is also concerned with the impact of the offender’s impairment on the offence and the offender’s future: R v Verdins [2007] VSCA 102 at [3]; De La Rosa at [177]-[178]; Engert . As I understand it, his schizophrenic illness will stay with him for the rest of his life. It can be managed in the community wi…
R v Henry [2007] NSWCCA 90
Citation 14 (Para 50)

…from the community for a longer period, although that period must be proportionate to what they did: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [2007] NSWCCA 90 at [28]…
Markarian v The Queen [2005] HCA 25
Citation 15 (Para 22)

…riousness of the offending and reflect on it. As the High Court made clear, I do not engage in a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120 at [28].…
Weininger v The Queen [2003] HCA 14
Citation 16 (Para 23)

…he human condition and human behaviour to the mathematics of units of punishment usually expressed in time”: Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629.…
R v Israil [2002] NSWCCA 255
Citation 17 (Para 50)

…e because someone needs to be removed from the community for a longer period, although that period must be proportionate to what they did: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [2007] NSWCCA 90 at [28]…
R v Simpson [2001] NSWCCA 534
Citation 18 (Para 54)

…the minimum period for which he should be imprisoned must properly reflect the seriousness of his offence and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Cheung v The Queen [2001] HCA 67
Citation 19 (Para 24)

…NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; N eal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325]; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [55]-[56] [171]-[172].…
Regina v Simpson [1999] NSWCCA 367
Citation 20 (Para 54)

…for which he should be imprisoned must properly reflect the seriousness of his offence and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Mill v The Queen [1988] HCA 70
Citation 21 (Para 53)

…I have to impose appropriate sentences for each matter: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. I have to consider the overall criminality and fix an appropriate aggregate term that covers all of what he did, the evidence relating to his need for support in the community.…
Neal v The Queen [1982] HCA 55
Citation 22 (Para 24)

…he was suffering from must be taken into account: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; N eal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325]; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [55]-[56] [171]-[172].…

Legislation Cited

Crimes Act 1900 (ACT) 113(2)
2 mentions (from Para 16)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 19)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 14)

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 Le v R [2019] NSWCCA 181 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 Henry [2007] NSWCCA 90 R v Israil [2002] NSWCCA 255 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Verdins [2007] VSCA 102 R v Windle [2012] NSWCCA 222 R v XX [2017] NSWCCA 90 Stobinski v R [2025] NSWCCA 97 Tepania v R [2018] NSWCCA 247 Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629
Category:	Sentence
Parties:	Jay Robert McNally (the offender) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: E Renard (for the offender) Solicitors: Tony Cullinan Lawyers (for the offender) K Malcolm solicitor for Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2024/38622