AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 November 2021

R v McGarrigle

[2021] NSWDC 780

Assault & violenceFirearms & weapons
CRIME RELEVANT FACTORS ON SENTENCE GUILTY PLEA REPEAT OFFENDER ON PAROLE UNABLE TO ACCESS REHABILITATION

Citation: R v McGarrigle [2021] NSWDC 780
Court: District Court of New South Wales
Date: 5 November 2021
Judge(s): Haesler SC DCJ

Background

The offender had previously been sentenced by the same judge in April 2018 for serious firearms offences committed when he was barely 18 years old. Upon release to parole in early 2020, the COVID-19 pandemic disrupted arrangements for drug rehabilitation that had been put in place. Within weeks, and despite family support and employment, the offender resumed contact with former associates and reoffended.

On the evening of 23 March 2020, the offender and a co-offender (Pratt) confronted a man in his 50s in the stairwell of a unit block in Wollongong. Both were armed, with their faces partly covered. The victim was shoved inside, struck with a large mallet by the co-offender, and when he attempted to defend himself, the offender fired a shortened firearm at him. The victim was shot in the leg. Bullet fragments lodged in bone were not fully removed, and the victim has since experienced ongoing pain, PTSD, and possible long-term arthritic consequences.

The offender was arrested on 12 June 2020. He pleaded guilty in the Local Court to discharging a firearm with intent to cause grievous bodily harm, and also asked the court to take into account a related offence of using an offensive weapon with intent to commit a serious indictable offence (on a Form 1). A further charge of possessing a shortened firearm was dealt with on a section 166 certificate.

  • What was the appropriate sentence for discharging a firearm with intent to cause grievous bodily harm, having regard to the standard non-parole period of nine years and a maximum of 25 years?
  • How should the Form 1 matter (offensive weapon offence) be properly taken into account without double-counting?
  • What weight should be given to the offender's youth, immaturity, drug use at the time of the offence, disrupted rehabilitation, and growing institutionalisation?
  • Was a finding of special circumstances warranted to extend the parole period beyond the statutory ratio?
  • What discount applied for guilty pleas entered in the Local Court?

Decision

Haesler SC DCJ assessed the principal offence as serious in its objective gravity. A loaded shortened firearm was discharged in a residential stairwell at close range against a victim who was simply trying to defend himself from an unprovoked attack. Although the victim's physical injuries fell at a relatively lower end of firearm injury outcomes, any gunshot wound is a grave injury. The judge also noted that the offender had been under the influence of methylamphetamine at the time, which did not mitigate the offending but in fact made it more serious, given the danger posed by an armed, drug-affected person in the community.

The Form 1 matter, covering events immediately preceding the shooting, was taken into account to increase the sentence for the principal offence. His Honour was careful to avoid double-counting, consistent with the principles in Attorney General's Application No 1 [2002] 56 NSWLR 146. The offender's claim that he believed he was enforcing a debt was accepted as a partial explanation of context, but the court found no evidence that the victim owed any debt.

On subjective matters, the judge acknowledged the offender's youth, immaturity, difficult background, and the fact that pandemic-related disruptions had frustrated the rehabilitation arrangements ordered on the prior sentence. However, His Honour also noted signs of institutionalisation, observing that prison had become normalised for the offender after nearly all of his adult life spent in custody. The 25% discount for early guilty pleas entered in the Local Court was applied.

Special circumstances were found to exist. The partly accumulated sentence, the risk of deepening institutionalisation, and the need for extended supervised reintegration into the community all justified departing from the standard non-parole period ratio. The judge expressed that closer monitoring on release would be essential, while acknowledging that the minimum term still had to properly reflect the seriousness of the offending.

Orders Made

  • Possession of shortened firearm (s 166 certificate): Fixed term of 12 months imprisonment, commencing 12 October 2020 and expiring 11 October 2021. Firearms destruction order made if necessary.
  • Discharging a firearm with intent to cause grievous bodily harm (including Form 1 matter): Total sentence of 7 years and 6 months imprisonment.
  • Non-parole period of 4 years and 3 months, commencing 12 December 2020, with eligibility for parole on 11 March 2025.
  • Balance of sentence (parole period) of 3 years and 3 months, commencing 12 March 2025.
  • Total sentence expires 11 June 2028.

Key Takeaways

  • A 25% discount on sentence applies where guilty pleas are entered in the Local Court, consistent with established NSW sentencing principles on the utilitarian value of early pleas.
  • Where a Form 1 matter relates to conduct immediately preceding the principal offence, a sentencing court must take that conduct into account to increase the sentence, while taking care not to double-count elements that already inform the sentencing exercise, as required by Attorney General's Application No 1.
  • Being under the influence of methylamphetamine while in possession of a firearm does not operate as mitigation; the District Court treated it as an aggravating circumstance given the heightened danger to the community.
  • Special circumstances justifying a longer-than-standard parole period were established here by the combination of partial accumulation on a prior sentence, evidence of emerging institutionalisation, and the need for extended post-release supervision and rehabilitation.
  • The decision illustrates the sentencing challenges that arise when rehabilitation services ordered at an earlier sentence cannot be implemented, including the risk that a young offender becomes progressively institutionalised through successive custodial terms.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(a), 33B(2)
- Firearms Act 1996 (NSW), s 62(2)(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- Attorney General's Application No 1 [2002] 56 NSWLR 146
- R v Pratt [2021] NSWDC 335
- Afu v R [2017] NSWCCA 246
- Bell v R [2019] NSWCCA 271
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lau v R [2010] NSWCCA 43
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26