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District Court 15 August 2025

R v McIlwraith

[2025] NSWDC 329

Theft & propertyPublic order & justice offences

Citation: R v McIlwraith [2025] NSWDC 329
Court: District Court of New South Wales
Date: 15 August 2025
Judge: Scotting DCJ

Background

The offender, Nathan McIlwraith, appeared for sentencing in the District Court after pleading guilty in the Local Court to nine offences spanning April to November 2023. The offending occurred across multiple locations on Sydney's Northern Beaches, including Manly, Balgowlah, and Warriewood.

The offending ranged from opportunistic workplace thefts to more serious property crimes. The most serious incidents included a late-night break-and-enter of a Manly convenience store committed with an accomplice, an aggravated entry into an occupied Manly dwelling where the offender confronted and threatened the resident upon her return home, and a further aggravated entry into a dwelling during a subsequent incident. The offender also resisted arrest and possessed a prohibited drug.

Six additional matters were placed before the court on a Form 1, meaning the court took them into account when sentencing on related principal offences without recording separate convictions for them. Those Form 1 matters included stalking and intimidation, further larcenies, and an offence of entering premises while having a previous conviction.

  • What aggregate sentence was appropriate across nine guilty pleas involving a pattern of property and related offending?
  • What discount applied by reason of the guilty pleas entered in the Local Court?
  • What standard of proof applied when making findings of fact at sentence, whether adverse or favourable to the offender?
  • How should the Form 1 offences affect the sentences imposed on the principal charges?
  • Whether special circumstances existed justifying a non-parole period that represents a greater proportion of the head sentence than the statutory norm.

Decision

Scotting DCJ applied a 25% discount to each sentence to reflect the guilty pleas entered in the Local Court, consistent with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. His Honour applied the standard articulated in R v Olbrich (1999) 199 CLR 270: facts adverse to the offender required proof beyond reasonable doubt, while facts favourable to the offender were assessed on the balance of probabilities.

The court treated the Form 1 matters in accordance with the principles established in the guideline judgment Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147, taking each into account alongside the nominated principal offence.

On the question of special circumstances, Scotting DCJ found a combination of factors warranted a considerably longer parole period than the statutory ratio would ordinarily produce. The offender had spent most of his adult life in custody, was institutionalised, and presented with serious mental health and drug dependency issues. His Honour considered it necessary to provide strong incentives for the offender to participate in custodial programs and to support reintegration into the community upon release.

For the possession of a prohibited drug charge, the court imposed no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999. An aggregate sentence was considered appropriate under section 53A of that Act given the number and nature of the offences.

Orders Made

  • Aggregate term of imprisonment of 6 years imposed.
  • Non-parole period of 3 years, commencing 3 April 2024 and expiring 2 April 2027.
  • Head sentence expiring 2 April 2030.
  • The offender is eligible for release on parole on 2 April 2027.
  • No further penalty imposed for the prohibited drug possession offence (s 10A, Crimes (Sentencing Procedure) Act 1999).

Indicative individual sentences (before aggregation):

  • Aggravated break and enter in company (s 112(2)): 3 years, NPP 18 months
  • Break and enter and commit serious indictable offence (s 112(1)(a)): 2 years
  • Larceny (with Form 1): 12 months
  • Resist/hinder police (with Form 1): 3 months
  • Larceny (Warriewood): 9 months
  • Enter dwelling with intent (with Form 1 matters): 2 years
  • Enter building with intent (with Form 1 matters): 2 years
  • Aggravated enter dwelling and commit serious indictable offence (with Form 1): 3 years

Key Takeaways

  • The District Court applied the R v Olbrich standard, requiring proof beyond reasonable doubt for adverse factual findings at sentence and proof on the balance of probabilities for findings favourable to the offender.
  • A 25% guilty plea discount was available where pleas were entered in the Local Court, pursuant to section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances were found to exist on the basis of institutionalisation, mental health vulnerabilities, serious addiction, and the need for structured reintegration support, producing a non-parole period equal to exactly half the head sentence rather than the standard two-thirds minimum.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction but impose no further penalty, a course taken here in respect of the minor drug possession charge.
  • Where an offender faces multiple related charges across several matters, section 53A of the Crimes (Sentencing Procedure) Act 1999 permits the imposition of a single aggregate sentence supported by indicative individual terms.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(1AA), 111(1), 111(2), 112(1)(a), 112(2), 114(1)(d), 117
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 25D(2)(a), 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Registered Clubs Act 1976 (NSW), s 45(1)

Cases:
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 (Form 1 guideline judgment)
- R v Olbrich (1999) 199 CLR 270 (standard of proof at sentencing)