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7
Court of Criminal Appeal 22 February 2017

McIlwraith v R

[2017] NSWCCA 13

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST CONVICTION LEAVE TO APPEAL AGAINST CONVICTION CHALLENGE TO FINDINGS OF FACT APPEAL AGAINST SENTENCE PURPOSIVE INTERPRETATION

Citation: McIlwraith v R [2017] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 22 February 2017
Judge(s): Basten JA (principal judgment); Johnson J and Button J agreeing

Background

The appellant was convicted in the District Court of breaking and entering a dwelling house and committing a serious indictable offence within it, contrary to s 112(2) of the Crimes Act 1900 (NSW). The serious indictable offence alleged was intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which requires an intention to cause another person to fear physical or mental harm. The events occurred on 18 June 2014 at a property in Fairlight, when the appellant, armed with a tomahawk, entered the premises and confronted the occupant. He was arrested the same day.

At trial, conducted before a judge alone, the appellant was acquitted on most counts but convicted on count 7 relating to the armed break-in and intimidation. He was sentenced to four years' imprisonment with a three-year non-parole period. The appellant had been released from custody only six weeks before the offending and was on parole at the time.

The appeal raised questions about whether the trial judge was correct to treat the intimidation offence as one that did not require consideration of the appellant's drug-affected state, and whether the sentencing judge erred in declining to find "special circumstances" warranting a reduced non-parole period.

  • Whether the offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is an offence of "specific intent" for the purposes of Part 11A of the Crimes Act 1900 (NSW), such that evidence of intoxication could be taken into account in assessing the mental element
  • Whether, if the trial judge erred on that question, the conviction should nonetheless be upheld given the judge's alternative findings on the appellant's state of mind
  • Whether the factual findings supporting the alternative basis for conviction were adequately supported by the evidence
  • Whether the sentencing judge erred in declining to find "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have permitted a shorter non-parole period relative to the total sentence

Decision

On the specific intent question (ground 1): Basten JA analysed whether s 13 of the Crimes (Domestic and Personal Violence) Act 2007 creates an offence of specific intent within the meaning of s 428B of the Crimes Act. Section 428B defines an offence of specific intent as one for which an intention to cause a specific result is an element. Basten JA concluded that s 13 does constitute an offence of specific intent, meaning the trial judge had erred in treating it otherwise. However, the significance of that error was substantially reduced by the way in which the trial judge had actually conducted the analysis.

The trial judge had also determined guilt on an alternative basis, proceeding as though the offence were one of specific intent and explicitly considering whether the appellant's drug-affected state negated the required intention. Having addressed the mental element on that alternative basis and still finding the appellant guilty, the trial judge's primary error was rendered immaterial to the outcome of the conviction.

On the challenge to factual findings (ground 3): During the hearing, the appellant sought leave to challenge the factual findings underpinning the trial judge's alternative conclusion. The Court granted leave to amend the notice of appeal, but ultimately refused leave under s 5 of the Criminal Appeal Act 1912 (NSW) to proceed on that ground. The Court was not persuaded that the findings of fact lacked sufficient evidentiary support to warrant intervention.

On special circumstances (ground 2): The Court refused leave to appeal against sentence. It accepted that the sentencing judge had properly assessed the appellant's history, including continuous adult offending and his release from parole only weeks before the present offences. The Court found that a finding of special circumstances in these circumstances would have been "remarkable," and no error was identified in declining to make one.

Orders Made

  • Leave to appeal refused with respect to the challenge to findings of fact
  • Appeal against conviction otherwise dismissed
  • Leave to appeal against the sentence imposed on 20 November 2015 refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that the intimidation offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is an offence of "specific intent" for the purposes of Part 11A of the Crimes Act 1900 (NSW), meaning evidence of intoxication may be taken into account in assessing the mental element.
  • Where a trial judge errs in classifying an offence as not one of specific intent, that error will not automatically result in a conviction being set aside if the judge has also made findings of guilt on an alternative basis that correctly applies the specific intent analysis.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a history of prolonged drug use and prior incarceration does not, without more, compel a finding of "special circumstances" warranting a departure from the standard relationship between the non-parole period and the balance of the term.
  • In dismissing the conviction appeal, the Court affirmed the approach that a late challenge to factual findings, raised for the first time during the appeal hearing without prior notice, will face a significant hurdle in obtaining leave under s 5 of the Criminal Appeal Act 1912.
  • Offending committed while on parole, only weeks after release, will be a relevant and weighty consideration against a finding of special circumstances at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 428A, 428B, 428C, 428D, Part 11A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5
- Interpretation Act 1987 (NSW), s 33

Cases:
- Harkins v R [2015] NSWCCA 263
- He Kaw Teh v The Queen (1985) 157 CLR 523
- The Queen v O'Connor (1980) 146 CLR 64
- R v Grant (2002) 55 NSWLR 80; [2002] NSWCCA 243
- Regina v Majewski [1977] AC 443
- Regina v Stones (1956) 56 SR (NSW) 25