R v Nathan McIlwraith [2019] NSWDC 213

District Court New South Wales

Medium Neutral Citation: R v Nathan McIlwraith [2019] NSWDC 213 Hearing dates: 21-25 January 2019 Decision date: 30 May 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [80] Catchwords: Deemed supply of prohibited drugs; two offences; being armed with intent to commit indictable offence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Inclosed Lands Protection Act 1904 Cases Cited: Berryman v R [2017] NSWCCA 297 Bugmy v R [2013] HCA 37 Jinnette v R [2012] NSWCCA 217 JM v R [2014] NSWCCA 297 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Van Ryn [2016] NSWCCA 1 Category: Sentence Parties: Director of Public Prosecutions (Crown) Nathan McIlwraith (Offender) Representation: Counsel: Ms D Hawkins

Solicitors: Ms K Zielinski File Number(s): 17/277112 Publication restriction: Nil

REMARKS ON SENTENCE 1. On 21 January 2019 the offender pleaded not guilty to two counts on an Indictment. They were: 1. On 12th day of September 2017, at Fairlight in the State of New South Wales, did supply a prohibited drug, namely, 23.40 grams of methylamphetamine. 2. On 12th day of September 2017, at Fairlight in the State of New South Wales, did supply a prohibited drug, namely, 69.48 grams of heroin. 1. Both counts were alleged breaches of s 25(1) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). 2. On 21 January 2019, the offender entered a plea of guilty to the following charge brought on Indictment: That he on 12th day of September 2017 at Fairlight in the State of New South Wales, did without lawful excuse have in his possession an implement capable of housebreaking, namely, a screwdriver, and that he was at Sydney on 20 November 2015, convicted of the indictable offence of being armed with an offensive weapon with intent to commit an indictable offence. 1. That offence was brought pursuant to s 115 of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment and there is no Standard Non‑Parole Period proscribed. 2. The following matters are related offences that are subject to a Certificate pursuant to s 166 of the Criminal Procedure Act 1986: Sequence 3 – Assault officer in execution of duty. The offence is pursuant to s 58 of the Crimes Act 1900 and the maximum penalty is 2 years imprisonment. Sequence 8 – Enter inclosed lands. The offence is pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1904. The maximum penalty is 5 penalty units. Sequence 9 – Enter inclosed lands. Sequence 11 – Carry cutting weapon. This is an offence pursuant to s 547D of the Crimes Act 1900 and carries a maximum penalty of 6 months imprisonment. A further offence, being Sequence 5, deal with the proceeds of crime ($3,625.00), an offence pursuant to s 193C(2) of the Crimes Act 1900 is to be withdrawn by the Crown at the conclusion of this sentence. 1. On 25 January 2019, the jury brought in verdicts of guilty on Counts 1 and 2 on the Indictment. The maximum penalty for each offence pursuant to s 25(1) of the DMTA is 15 years imprisonment and/or 2000 penalty units. There is no Standard Non-Parole Period proscribed. 2. The following findings of fact may be derived from the jury verdicts. At about 7am on Tuesday 12 September 2017, police were called to premises in Fairlight in respect to a complaint of owners of a property that there was a man on their balcony. Police arrived at the property and were directed to the back of the property. The offender identified himself by saying words to the effect of "Aww me ankle", and the police observed him on the neighbouring property seated on a small set of stairs. Police officers jumped the fence and arrested the offender, who was wearing a black puffer jacket, black running shorts, compression tights, and a pair of runners. 3. A police search of the offender's jacket revealed a piece of cigarette packet cardboard containing a crystalline substance, later revealed to be methylamphetamine, a mobile phone in a case which contained $3,625 in cash, a razor blade and another mobile phone. 4. Investigating police observed a bulge protruding from the offender's groin area, and the search found hidden within his underwear, of which there were multiple layers, a plastic bag which contained a substance later analysed as 23.4 grams of methylamphetamine. That was the prohibited drug referred to in Count 1 on the Indictment. 5. A further search of the back of the accused's clothing revealed a resealable plastic bag containing pellets, which were later analysed to constitute 69.48 grams of heroin. That was the prohibited drug the subject of Count 2 on the Indictment. 6. In respect of each count on the Indictment, the Crown case was that the accused was in possession of than greater than the proscribed trafficable quantity for each drug, which was 3 grams in respect of both methylamphetamine and heroin. It was the Crown case that as the offender possessed the prohibited drugs in quantities greater than the trafficable quantity, he possessed them for the purpose of supply. 7. During the search of the offender's underpants, investigating police also located a 15 cm long bent screwdriver, which was the implement upon which an offence pursuant to s 115 of the Crimes Act was based. Also, during that search, the offender became aggressive and was thrashing about. He turned towards Sergeant Church and spat at him. The Sergeant ducked out of the way of the spittle. This was the basis of the offence in Sequence 3, assault officer in execution of his duty, pursuant to s 58 of the Crimes Act 1900. 8. At trial it was the offender's case that he possessed the prohibited drugs, albeit in a smaller quantity than particularised, but greater than 3 grams of both methylamphetamine and heroin, for a purpose other than for supply, namely, his own personal use. By its verdict, the jury rejected that defence and his evidence in relation to it.