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District Court 26 June 2025

R v McNally

[2025] NSWDC 333

Theft & property

Citation: R v McNally [2025] NSWDC 333
Court: District Court of New South Wales
Date: 26 June 2025
Judge: Haesler SC DCJ

Background

In January 2024, an offender aged 32 entered two homes in a small NSW South Coast hamlet while armed with a knife and a hatchet. He had been drinking, had recently used methamphetamine, and was experiencing acute psychotic symptoms including auditory hallucinations. He believed voices he was hearing belonged to a neighbour, and he entered her home screaming threats to kill her. He then entered the adjacent flat occupied by his sister and her partner, searching the premises and later telling police he intended to torture and kill the sister's partner.

Fortunately, neither residence was occupied at the time. The neighbour and her foster child had left for town; the sister and her partner had gone to work. The offender was subsequently arrested and taken to a mental health hospital, where he was admitted as a mentally ill patient with acute psychotic features. He was diagnosed at that stage with possible methamphetamine-induced psychosis, but a forensic psychiatrist later concluded the correct diagnosis was schizophrenia, which had not previously been identified.

The offender faced two charges of aggravated break and enter with intent to commit a serious indictable offence while armed, contrary to s 113(2) of the Crimes Act 1900 (NSW). The maximum penalty for each offence is 14 years' imprisonment. He elected to proceed in the criminal jurisdiction rather than pursue the mental health defence available under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), and entered early guilty pleas.

  • What weight should the offender's undiagnosed schizophrenia and associated psychotic state carry in assessing moral culpability and the objective seriousness of the offending?
  • Whether the offender's admissions to police and cooperation with the investigation constituted "assistance to authorities" under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), attracting a sentencing discount beyond the 25% utilitarian value of the guilty pleas.
  • How to balance the conflicting sentencing considerations of community protection, specific and general deterrence, rehabilitation, and proportionality where an offender has severe mental illness.
  • What total sentence and non-parole period were appropriate, including the structure of a parole plan to manage community safety risks.

Decision

The District Court accepted the forensic psychiatrist's opinion that the offender suffered from schizophrenia, not merely methamphetamine-induced psychosis, at the time of the offences. Haesler SC DCJ acknowledged the offending was objectively serious: it involved weapons, explicit threats to kill, entry into two homes, and significant ongoing impact on the victims. The court nonetheless recognised that the offender's severe mental illness substantially reduced his moral culpability, consistent with the principles in R v Verdins [2007] VSCA 102, which NSW courts apply to moderate sentencing where mental illness impairs an offender's capacity for self-regulation and understanding of consequences.

On the question of police cooperation, the court rejected the defence submission that the offender's participation in a recorded interview and his admissions to police enlivened s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Drawing on Le v R [2019] NSWCCA 181 and Browning v R [2015] NSWCCA 147, the court held that making admissions about one's own offending in a police interview does not, by itself, constitute assistance within the meaning of that provision. The court did, however, take the cooperation into account as a matter going beyond the purely utilitarian value of the guilty pleas.

The court identified a tension between the need to protect the community and the requirement that any sentence be proportionate to the nature and circumstances of the offences. Haesler SC DCJ noted that further reducing the non-parole period beyond what the guilty plea discount required would produce a result disproportionate to the seriousness of the offending. The offender's positive conduct in custody, the absence of prior convictions, his good character before the offences, and his engagement with treatment all weighed in his favour as mitigating factors.

Release to parole was described by the court as conditional on the State Parole Authority being satisfied that community safety concerns could be met through an approved plan. The court noted that the offender's ongoing treatment for schizophrenia, abstinence from illicit drugs, and compliance with apprehended personal violence orders would be central to any future parole assessment. The court remarked that the victims' fear and sense of personal targeting may persist regardless of any explanation about the role of mental illness in the events.

Orders Made

  • Sequence 1 (offence against the neighbour, intent to intimidate): sentence of 2 years and 7 months.
  • Sequence 2 (offence against the sister and her partner, intent to cause grievous bodily harm): sentence of 2 years and 10 months.
  • Total sentence: 3 years and 6 months.
  • Non-parole period: 1 year and 9 months, commencing 31 January 2024, with the offender eligible for parole consideration from 30 October 2025.
  • Parole period: 1 year and 9 months commencing 31 October 2025; sentence to expire 30 July 2027.
  • Release to parole is not automatic and requires a decision of the State Parole Authority, with community safety concerns to be addressed through an approved parole plan before release.

Key Takeaways

  • Making admissions about one's own offending during a police interview does not constitute "assistance to authorities" under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as confirmed by reference to Le v R and Browning v R. The relevant threshold requires something more than participation in an interview about one's own conduct.

  • Severe mental illness, including undiagnosed schizophrenia causing acute psychosis, can substantially reduce an offender's moral culpability even where the objective seriousness of the offending remains high. The District Court's approach reflects the established NSW application of the Verdins principles.

  • Where mental illness is a significant sentencing factor, the court must still ensure proportionality: reducing the non-parole period further than the guilty plea discount alone required was held in this case to risk producing an outcome disproportionate to the offences' seriousness.

  • An offender's informed election to proceed in the criminal jurisdiction rather than pursue a mental health defence is a legitimate choice that the sentencing court respects, even where the offender may have had grounds for that alternative pathway.

  • Release to parole following sentences involving serious mental illness and community safety concerns is subject to the State Parole Authority's assessment of whether an adequate management plan is in place, meaning early release is never automatic in such cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 23(1), 23(2), 23(3)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 28

Cases
- Browning v R [2015] NSWCCA 147
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R [2022] NSWCCA 156
- Engert v R (1995) 84 A Crim R 67
- Le v R [2019] NSWCCA 181
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- Paterson