R v Nathan McIlwraith - [2019] NSWDC 213

District Court

New South Wales

Medium Neutral Citation: R v Nathan McIlwraith [2019] NSWDC 213
Hearing dates: 21-25 January 2019
Decision date: 30 May 2019
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [80]

Catchwords: Deemed supply of prohibited drugs; two offences; being armed with intent to commit indictable offence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Inclosed Lands Protection Act 1904
Cases Cited: Berryman v R [2017] NSWCCA 297
Bugmy v R [2013] HCA 37
Jinnette v R [2012] NSWCCA 217
JM v R [2014] NSWCCA 297
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Nathan McIlwraith (Offender)
Representation:
Counsel:
Ms D Hawkins
Solicitors:
Ms K Zielinski

File Number(s): 17/277112
Publication restriction: Nil

REMARKS ON SENTENCE

On 21 January 2019 the offender pleaded not guilty to two counts on an Indictment. They were:

On 12th day of September 2017, at Fairlight in the State of New South Wales, did supply a prohibited drug, namely, 23.40 grams of methylamphetamine.

On 12th day of September 2017, at Fairlight in the State of New South Wales, did supply a prohibited drug, namely, 69.48 grams of heroin.

Both counts were alleged breaches of s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).
On 21 January 2019, the offender entered a plea of guilty to the following charge brought on Indictment:

That he on 12th day of September 2017 at Fairlight in the State of New South Wales, did without lawful excuse have in his possession an implement capable of housebreaking, namely, a screwdriver, and that he was at Sydney on 20 November 2015, convicted of the indictable offence of being armed with an offensive weapon with intent to commit an indictable offence.

That offence was brought pursuant to s 115 of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment and there is no Standard Non‑Parole Period proscribed.
The following matters are related offences that are subject to a Certificate pursuant to s 166 of the Criminal Procedure Act 1986:

Sequence 3 – Assault officer in execution of duty. The offence is pursuant to s 58 of the Crimes Act 1900 and the maximum penalty is 2 years imprisonment.

Sequence 8 – Enter inclosed lands. The offence is pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1904. The maximum penalty is 5 penalty units.

Sequence 9 – Enter inclosed lands.

Sequence 11 – Carry cutting weapon. This is an offence pursuant to s 547D of the Crimes Act 1900 and carries a maximum penalty of 6 months imprisonment.

A further offence, being Sequence 5, deal with the proceeds of crime ($3,625.00), an offence pursuant to s 193C(2) of the Crimes Act 1900 is to be withdrawn by the Crown at the conclusion of this sentence.

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 Nathan McIlwraith

Details

AGLC: R v Nathan McIlwraith [2019] NSWDC 213
Case: [2019] NSWDC 213
Decision Date: 30 May 2019

CaseChat Overview and Summary

In the matter of R v Nathan McIlwraith, the defendant faced charges related to the deemed supply of prohibited drugs, as well as being armed with intent to commit an indictable offence. The dispute was heard and determined by the relevant court. The primary issues before the court were the interpretation of the relevant statutory provisions concerning deemed supply and the application of these provisions in the context of the facts of the case. Additionally, the court had to consider the circumstances surrounding the defendant's possession of a weapon and the intent behind it.

The court examined the statutory framework governing the deemed supply of prohibited drugs, analysing the specific language and intent behind the legislation. It considered whether the defendant's actions met the criteria for a deemed supply, taking into account the context in which the drugs were possessed. The court also delved into the issue of the defendant's possession of a weapon, evaluating the evidence to ascertain whether the defendant was armed with intent to commit an indictable offence. The court's analysis was thorough, weighing the prosecution's evidence against the defence's arguments to reach a reasoned decision.

Upon reviewing the evidence and legal arguments presented, the court found that the defendant's actions constituted a deemed supply of prohibited drugs and that he was indeed armed with intent to commit an indictable offence. The court's reasoning was grounded in a careful interpretation of the relevant statutes and a detailed assessment of the factual circumstances. The outcome of the case was a conviction on both counts, leading to the imposition of a full-time custodial sentence. The specific orders and sentence details were outlined in the court's written reasons, providing clarity and guidance for the defendant's legal counsel.

Orders

Orders of the court

Full-time custodial sentence. For orders see [80]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Nathan McIlwraith [2019] NSWDC 213
Hearing dates:	21-25 January 2019
Decision date:	30 May 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [80]
Catchwords:	Deemed supply of prohibited drugs; two offences; being armed with intent to commit indictable offence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Inclosed Lands Protection Act 1904
Cases Cited:	Berryman v R [2017] NSWCCA 297 Bugmy v R [2013] HCA 37 Jinnette v R [2012] NSWCCA 217 JM v R [2014] NSWCCA 297 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Nathan McIlwraith (Offender)
Representation:	Counsel: Ms D Hawkins Solicitors: Ms K Zielinski
File Number(s):	17/277112
Publication restriction:	Nil