R v McGrady [2021] NSWDC 816

Citation: R v McGrady [2021] NSWDC 816
Court: District Court of New South Wales
Date: 25 November 2021
Judge(s): Sutherland SC DCJ

Background

In the early hours of 23 November 2020, a group of young men drove through Boggabilla, a small town of roughly 550 people on the NSW-Queensland border, firing shots at multiple residential premises and motor vehicles over approximately two hours. The offender, a 19-year-old Indigenous man from the nearby Toomelah Mission, was at the centre of this episode. The events appear to have grown from an ongoing personal conflict with another young man, which escalated into a brawl involving up to 20 people outside the offender's mother's home in the early hours of that morning.

The offender was identified as driving a white Mitsubishi Magna and as having personally discharged a rifle at several premises. Occupied houses were targeted repeatedly, including a home containing approximately eight people, among them a 12-year-old child. A co-offender, Alexander McGrady, was also present and participated in the shooting but was separately listed for trial at the time of sentencing.

The offender initially denied involvement when arrested in January 2021, but shortly after made admissions in a second police interview. He pleaded guilty in the Local Court and appeared for sentencing on three substantive charges of firing a firearm at a dwelling house with reckless disregard for safety, contrary to section 93GA(1) of the Crimes Act 1900, each carrying a maximum of 14 years imprisonment and a standard non-parole period of five years. Additional charges were placed on a Form 1 document.

Legal Issues

What was the appropriate level of objective seriousness for each of the three substantive offences?
To what extent, if any, did provocation from the earlier brawl and attack on the offender's mother's home reduce moral culpability or objective seriousness?
What weight should be given to the offender's youth, Indigenous background, deprived upbringing, and Bugmy factors in mitigation?
What aggregate sentence, including the extent of concurrency, was appropriate given the multiplicity of offences arising from a single continuing course of conduct?
Was a finding of special circumstances warranted to extend the additional term?

Decision

Objective seriousness of the three offences

The court assessed the shooting at 67 Yeoman Street as the most serious of the three substantive offences. The house was occupied by approximately eight people including a 12-year-old child, shots were fired on three separate occasions during the rampage, and entry bullet holes were found in two bedroom walls. The court placed that offending clearly within an identifiable mid-range of objective seriousness (at [76]). The shooting at 57 Merriwa Street, where two adults were present and subsequently fled, fell below the Yeoman Street offending but still within a broad mid-range (at [78]). The shooting at Racecourse Road, where only one person was in the house and two shots were fired, fell below mid-range (at [79]).

Provocation and "taking the law into his own hands"

The offender submitted that the attack on his mother's home provided a level of provocation reducing his moral culpability. The court was sceptical of the factual foundation for this claim, noting that the agreed facts placed the offender among the group that first went to Adrian Whiteman's premises and invited a fight, which made his account of being motivated solely by his mother's distress difficult to accept (at [83]). Even accepting some provocation, the court applied the established principle that motive may explain conduct without reducing moral culpability to any significant degree, and that offenders who take the law into their own hands engage in conduct that is the antithesis of the rule of law (at [85]-[93]). General and specific deterrence remained important considerations, particularly given the use of firearms in what the court described as an essentially Indigenous community (at [94]).

Subjective factors, Bugmy principles, and youth

The court gave meaningful weight to the offender's age of 19, his minimal criminal history (making him essentially a young man of good character), and his background (at [55]-[56]). He had been raised by his grandmother at Toomelah Mission, was exposed to domestic violence as a child including witnessing his grandfather assault his grandmother, and experienced dissociative episodes as a result (at [62]). He had significant literacy difficulties, limited employment prospects, and had grown up in an environment of ingrained social conflict and substance abuse (at [58]-[64]). The court found these factors engaged the Bugmy principles, reducing moral culpability, and noted that rehabilitation prospects were supported by a letter from men of the Toomelah community (at [110]-[111]).

Aggregate sentence and special circumstances

The court found that all offences arose from a single continuing course of conduct and that a substantial degree of concurrency was warranted (at [113]). A finding of special circumstances was made to reflect the offender's prospects of rehabilitation, his youth, and his overall subjective case (at [113]). The indicative sentence for Yeoman Street (Sequence 2), taking into account a 25% guilty plea discount and the Form 1 matters, was six years with an indicative non-parole period of three years (at [114]). For Merriwa Street (Sequence 1), five years with a non-parole period of two and a half years (at [115]). For Racecourse Road (Sequence 3), three years with an 18-month non-parole period (at [116]). Applying substantial concurrency, the aggregate sentence was seven years imprisonment with a minimum term of three and a half years, backdated to 5 January 2021 (at [117]).

Orders Made

Aggregate sentence of 7 years imprisonment imposed, with a minimum term (non-parole period) of 3 years and 6 months.
Sentence backdated to commence 5 January 2021.
Minimum term to expire 4 July 2024; additional term of 3 years and 6 months to expire 4 January 2028.
Special circumstances found, resulting in an extended additional term beyond the standard ratio.
Form 1 matters (Sequences 7 and 8) taken into account in relation to Sequence 2.

Key Takeaways

Provocation arising from prior criminal conduct by others may explain an offender's motive for a firearms offence but does not necessarily reduce moral culpability to any significant degree, and must be weighed against the strong public interest in deterring those who take the law into their own hands, particularly where firearms are used (at [85]-[93]).
Where multiple charges of firing at dwelling houses arise from what is, in substance, a single continuing course of conduct occurring over one night, a substantial degree of concurrency in the aggregate sentence may be warranted, even where numerous premises are targeted (at [113]).
The District Court confirmed that Bugmy principles apply to reduce moral culpability where an Indigenous offender has been raised in a community marked by ingrained social conflict, domestic violence, and substance abuse, and where those conditions have demonstrably shaped the offender's development and decision-making (at [110]).
A finding of special circumstances, extending the additional term beyond the standard ratio, remains available where a young offender's prospects of rehabilitation and the need for supervised reintegration justify it, notwithstanding the seriousness of the offending (at [113]).
JIRS sentencing statistics for section 93GA(1) offences, where only 18 higher court cases existed at the time of sentence, were noted to span an extremely wide range and offered limited practical guidance to the sentencing exercise (at [95]-[96]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- Dixon v R [2020] NSWCCA 123
- Powell v R [2014] NSWCCA 69
- R v Dole; R v Nguyen [2010] NSWCCA 101
- R v Kaplantzi [2020] NSWDC 889
- R v Karaitaina [2020] NSWDC 691
- R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
- R v Quealey [2010] NSWCCA 116
- R v Sequera [2021] NSWDC 573
- R v Swan [2006] NSWCCA 47
- R v Way [2004] NSWCCA 131