McIlwraith v R [2017] NSWCCA 13

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McIlwraith v R [2017] NSWCCA 13 Hearing dates: 2 February 2017 Decision date: 22 February 2017 Before: Basten JA at [1]; Johnson J at [63]; Button J at [64] Decision: (1) Refuse leave to appeal with respect to the challenge to findings of fact. (2) Otherwise dismiss the appeal against conviction. (3) Refuse leave to appeal against the sentence imposed in the District Court on 20 November 2015. Catchwords: CRIMINAL LAW – appeal against conviction – whether error in finding that offence of intimidation under s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW) is not an offence of specific intent – whether offender's intoxication at time of offence able to be taken into account in determination of guilt – whether conviction to be set aside if found guilty on alternative basis

CRIMINAL LAW – leave to appeal against conviction – challenge to findings of fact – whether offence elements were made out when offender's intoxication taken into account

CRIMINAL LAW – appeal against sentence – whether error in failing to find "special circumstances" – whether offender's long history of incarceration and drug use constituted "special circumstances" – whether sentence should be reduced as a result

STATUTORY INTERPRETATION – purposive interpretation – whether offence provision should be given differential operation depending on mental element involved – consequence of potential complexity of required jury directions Legislation Cited: Crimes Act 1900 (NSW), ss 112, 428A, 428B, 428C, 428D; Pt 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 Cited: 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 Category: Principal judgment Parties: Nathan Vaughan McIlwraith (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: Mr F D Coyne (Applicant) Mr S Hughes (Respondent)