Regina v McIlwraith - [2005] NSWCCA 137

CITATION:
Regina v McIlwraith [2005] NSWCCA 137

HEARING DATE(S): 6 April 2005

JUDGMENT DATE:

6 April 2005

JUDGMENT OF:
Hunt AJA at 32; Grove J at 2; Hall J at 33

DECISION:
APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED ROBBERY - MALICIOUS INFLICTION OF GRIEVOUS BODILY HARM BY APPELLANT - PARITY WITH CO-OFFENDER WHO WAS MARKEDLY LESS INVOLVED NOT REQUIRED - JUDGE DECLINES TO DEPART FROM STATUTORY FORMULA WHEN SETTING NON PAROLE PERIOD - NO OBLIGATION SO TO DO - ERROR NOT IMPLIED BY ABSENCE OF ELABORATION

LEGISLATION CITED:

S 44 Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Postiglione v The Queen 1997 189 CLR 295
R v Hoshke [2001] NSWCCA 317
R v Fidow [2004] NSWCCA 172
R v Hookey [2004] NSWCCA 223
R v Phillips [2003] NSWCCA 373
R v Simpson 2001 53 NSWLR 704

PARTIES:
Regina v Nathan Vaughan McIlwraith

FILE NUMBER(S):
CCA 2005/292

COUNSEL:
V. Lydiard (Crown)
H. Dhanji (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S.E. O'Connor (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0528

LOWER COURT JUDICIAL OFFICER:
Balla DCJ

2005/292
HUNT AJA
GROVE J
HALL J

Wednesday 6 April 2005

REGINA v NATHAN VAUGHAN McILWRAITH

Judgment

1 HUNT AJA: Mr Justice Grove will give the first judgment.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Balla DCJ at Sydney District Court. The applicant had pleaded guilty before a magistrate to a single charge of aggravated robbery, the circumstance of aggravation being that he maliciously inflicted actual bodily harm. The prescribed maximum penalty for such offence is imprisonment for twenty years. For procedural reasons the applicant pleaded guilty to indictment presented but his early plea of guilty before the magistrate was recognized and her Honour indicated that she was reducing the sentence which she otherwise would have assessed by 25 percent in recognition of that early plea.

3 The applicant was sentenced to imprisonment consisting of a non parole period of four years and six months with a total term of six years.

4 The undisputed facts were that at about 9.30 pm on Wednesday 14 January 2004 the applicant with two other persons entered the premises of Civic Video Store in Dee Why. A fourth person, a juvenile, waited outside the store.

5 What happened thereafter was captured on a store security camera. The video has been shown to the Court this afternoon. At the time there were two employees of the store present, a male and a female. The applicant approached the male and, after making an obscene remark, jumped upon the counter and knocked a computer monitor to the floor, whereafter he began to punch the man about the head and body a number of times. The female employee was directed to lie on the floor with which direction she complied.

6 The applicant and one other offender went to cash registers from which money was extracted. The applicant then noticed the male employee’s wallet underneath the…

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 Regina v McIlwraith

Details

AGLC: Regina v McIlwraith [2005] NSWCCA 137
Case: [2005] NSWCCA 137
Decision Date: 6 April 2005

CaseChat Overview and Summary

The case of Regina v McIlwraith involved the appellant, McIlwraith, who was convicted of aggravated robbery and malicious infliction of grievous bodily harm. The dispute centred around the appropriate sentence for the appellant's crimes, with a particular focus on whether the sentence should reflect the severity of the crimes and the appellant's role in them. The matter was heard in the High Court of Australia.

The primary legal issue the court had to address was whether the judge was required to ensure that the sentence imposed on McIlwraith was equal to that of his co-offender, who was markedly less involved in the crimes. The appellant argued that the judge should have departed from the statutory formula for setting the non-parole period to achieve parity with his co-offender's sentence. The court needed to determine whether the absence of elaboration by the judge in his reasons for the sentence indicated an error in the sentencing process.

The High Court found that the judge was not obligated to achieve parity between the sentences of co-offenders, particularly when one was less involved in the commission of the crimes. The court held that the absence of elaboration by the judge in his reasons did not imply an error. The court emphasised that the sentencing judge had the discretion to set a non-parole period within the statutory limits and did not need to provide detailed reasoning to justify the sentence. The court confirmed that there was no obligation for the judge to depart from the statutory formula when setting the non-parole period. Therefore, the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal. The sentence imposed by the trial judge remained unchanged, with the High Court upholding the trial judge's discretion in sentencing.

Orders