R v McGaw

Plea

1. Because McGaw pleaded guilty in the Local Court, I will reduce the otherwise indicated sentences by 25% to recognise the utilitarian value of his plea of guilty: s 25D Crimes (Sentencing Procedure) Act. The plea also shows acceptance of responsibility. It is a measure of the man who, despite having some matters on his record from many years ago, I will treat as a first offender. He appears to be an otherwise upstanding member of the community, who has provided community service to local sporting clubs, I presume, in a voluntary capacity.
2. When crimes are committed against people it can cause a visceral; a gut, reaction. When you have saved hard to purchase something that is special to you and your family and someone turns up and helps themselves to it, victims can feel justifiably aggrieved. In a sentencing judgment I gave for a break and enter matter not long ago I quoted a victim saying, "I worked hard for this and some (expletive deleted) stole it from me. They didn't work for it, they didn't struggle to get it". I understand, as best a judge can do, that reaction.
3. But one of the fundamental reasons we have a system of law and system of justice is to ensure that victims of crime not resort to self-help. Because, as this case tragically reveals, all that does is escalate criminal activity in the community and cause even more disquiet in the community. It can lead to violence between members of the community which, in turn, and as here, backfires on the very person who was initially the victim of a crime.
4. Courts, while they are sympathetic to motivations such as the ones explained here, have to be particularly careful, because we do not live in a vengeful society. Retribution against offenders is for the courts, no-one else. If the law is allowed to be enforced by violence against so-called offenders, we will not have a system of law and without laws we will not have a community.

Facts

1. The facts in this matter are agreed, with one or two minor inconsequential variations in the given evidence today.
2. When the McGaw family home was broken into in January 2021, three motorbikes, valued at over $20,000, were stolen. Members of the community informed McGaw that they believed young men were responsible for the theft. The family home associated with those young men was identified. This offender and a younger, larger, football playing friend attended at that home, in a suburb of southern Wollongong. Demands were made of the young men's father seeking the return of the motorbikes. Their father said that he knew nothing.
3. The offender returned to the home another time. This time he was with a co‑offender, Mr Cairney, who is to be sentenced later this year. The father showed them through the home. The offender said, "Look, we know it was one of these people" but the two young boys in the house came out and said they know nothing about it. The offender said, "This is bullshit, someone is going to get pumped over this" and then left.
4. On 14 January 2021 one of the young men who lived at the home stopped as he walked down the street when the offender pulled up on his motorcycle. He said, "I'll tell you anything straight away" if he knew anything about the theft.
5. At 11pm on 14 January the father of the household was in the lounge room. He heard a knock. He opened the door. Three men, including McGaw, Cairney and an unidentified man, pushed into the house. They demanded to know where the son was. The father said, "Which one do you want?" The offender said, "Your youngest".
6. Soon after, the youngest of the brothers in the house came downstairs to the loungeroom. The offender said, "I have you on camera footage, I can see your face. Stop fucking around, where are they?". The younger brother said, "I didn't take them, I don't know where they are, I promise, I promise".
7. At this point Cairney punched the young man to the head, causing him to fall back onto the couch. He then pulled the young man from the couch to the ground. The third man kicked him and, although the facts say "punched to the head," it looks like there was a kick in that direction. It is accepted, as it is clear from the CCTV, exhibit B, that Mr McGaw did not engage in the physical violence. He was however, present, and he stood over the young man while he was on the ground. This is the offence of common assault, as he was party to that assault.
8. The third man then attacked the older of the brothers. He was hit to the head with something and suffered a slight injury and was also left dazed and confused. This offence is to be dealt with on the Form 1.
9. McGaw told me in evidence, and I am prepared to accept, that he went there intending to intimidate the young men to get them to tell him where the stolen motorbikes were. He said he did not want any physical violence and he did not know anyone was armed. I am also prepared to accept that evidence, but the mere presence of two men, older, fit Mr Cairney and fit for his age Mr McGaw would clearly have been intimidating. And clearly there was a risk that the matter would escalate. They were in another's home. They had barged their way into that home at 11 o'clock at night. It was, as is clear from the CCTV, which shows the mother of the household, I presume, coming down in her pyjamas, a disturbing event. It left one victim injured and the other younger victim dazed and confused.
10. An initial reading of the facts left me with the impression that the three men were acting in pre-planned concert. Mr McGaw in evidence today did not go behind the facts but added something to them. He said that each time he visited the house he would see people waiting outside. He said he had no idea who the third person was. He had seen him out the front that night, and he had followed him and Cairney into the house. Despite initial appearances he said there was no prior agreement with that man to do anything.
11. Although many in the community might be sceptical about that version of events judges hear too much about what goes on in our community. As I indicated in discussion, I am aware of houses where people sometime times gather with a grievance or some interest in the those in the house. It is not beyond the bounds of possibility what McGaw says is what occurred. Nevertheless, nothing was done by him to dissuade that third person, and from the perspective of the victims the three would have appeared to be acting in concert.
12. I will sentence on the basis that the offender went to the home to intimidate and is liable for the assaults that occurred as part of a joint or extended joint criminal enterprise. They are the offences he either pled guilty to or accepted his responsibility for so it could be placed on the Form 1.
13. Objectively, the enter dwelling is a serious offence that in the ordinary course of events would require a full-time custodial sentence. So much is accepted by Mr Anderson who appears for the offender.

Subjective case

1. I am indebted, as always, to a comprehensive and helpful report from Ms North, a forensic psychologist. Mr McGaw gave evidence and said that what he had told her was true and correct. She notes a history of lack of sleep, anxiety and frustration that he could not recover his son's bike leading to heightened anxiety and adjustment disorder in response to specific stressors. She notes that there is no other history of mental health issues.
2. As McGaw said in his evidence the incident itself from the first theft to his own crimes, and what occurred afterwards; including plea and the preparation for sentence, have had a significant emotional impact on him. That, in turn, has had an impact on his family. Ms North details these effects. She notes protective and risk factors.
3. The risk factors are; his offences in the past, which I discount, his less than Year 12 education, which I do not think is significant, and his moderate levels of emotional stress. It is this last factor that has some significance. I must consider whether he might reoffend if he were ever put in a similar position again.
4. There are, however, several protective factors; his supportive and prosocial family, a stable employment history, stable accommodation, no history of substance abuse or issues, expressions of regret and willingness to accept responsibility and generally prosocial attitudes to life and the community.
5. His referees speak of a trusted, generous, hardworking, dependable man who is honest and selfless. All of them, including his employer, say this offence is totally out of character.
6. I must consider his moral culpability, that is, his blameworthiness. This can here include consideration of his subjective factors, including his background, age, maturity and the unusual mental state he found himself in at the time.
7. While he has not expressed any form of apology for his victims, whom I am sure he still blames for the theft, he has shown some empathy. As would any sensible father who saw what occurred on that CCTV footage. He is obviously regretful that he got involved. And regretful he got his friend Cairney involved He appears regretful for the consequences that he and his family have suffered. He has, as a consequence of his actions, suffered a significant number of losses on top of the loss of the bikes. He has suffered a level of anxiety. He has lost of work. He has had to pay his lawyers and for someone on a basic income that is not inconsiderable. He says, sensibly, "I should have let the police handle it". His failure to do so has put him in the dock facing a custodial sentence.
8. I have the benefit of a Sentence Assessment Report which confirms all of the subjective material before me. It indicates that no interventions or supervision is required. It indicates the offender is eligible for community service; which hopefully will resume once the pandemic abates.

Submissions

1. Mr McGonigal, solicitor for the Director, in his written submission has very helpfully set out the relevant legal principles and reference to authorities. The initial prosecution submission was that at an objective level, what was done demanded a custodial sentence given the need to give weight to principles of both general and personal deterrence, victim indication and retribution. I use the term retribution in the sense that others in community should understand the consequences that will fall upon them if they, in company, enter another's house at night and do what this offender did.
2. Mr Anderson accepts that both matters call for custodial sentences. He urges and alternative option that in his submission could best meet all the purposes of sentencing, serving the sentence in the community subject to intensive correction.

Synthesis

1. This sort of matter creates a dilemma for a sentencing judge. The balance of relevant factors that must be undertaken was succinctly summarised in the Director's submissions. An Intensive Correction Order may serve the purposes of sentencing more than removal of this offender from the community for a relatively short period, but retribution, that is general deterrence, and victim vindication and recognition of the harm matters such as this offence caused can, in many circumstances, require a full-time custodial sentence. There are no programs or interventions that McGaw needs, he is generally a prosocial person, and I am sure this breach of the law will be his last.
2. There is no issue here about community safety: s 66(2) Crimes (Sentencing Procedure) Act. I am alive to sentencing authorities which have emphasised that the gravity of some crimes, and the need for denunciation and deterrence, mean that full-time custodial sentences should be imposed, and the purposes of sentencing, common law, and in s 3A of the Crimes (Sentencing Procedure) Act make this clear.
3. But every case and every individual is different. I was impressed by Mr McGaw's evidence. I do not believe he would reoffend. I do not believe he is a threat to the community. He is a person who, through involvement in sport, has put something back into the community. As Mr Anderson, on his behalf puts it, an Intensive Correction Order while less severe than gaol is not a light order. He will be subject to supervision for a considerable period of time, he will have to put something back into the community by way of community service. That, in all the circumstances, is, I believe, a more just and appropriate sentence than simply locking him up for a relatively short period and then placing him on parole.
4. A starting aggregate sentence between two and three years is required. I must then take into account the guilty pleas. There are two matters for sentence today. An Intensive Correction Order can be made if there is a total effective sentence in that range, even if one of the individual sentences exceeds two years: Abel v R [2020] NSWCCA 82. Anomalous though it may seem, that is what s 68 Crimes (Sentencing Procedure) Act allows for.

Orders

1. The formal orders of the Court are these.

Indicated sentences

1. In relation to the aggravated enter, taking into account the matter on the Form 1, there will be a sentence of two years and three months.
2. In relation to the common assault there will be an indicated sentence of three months.

Aggregate sentence

1. There will be an aggregate sentence of two years and four months. The sentence is to be served in the community subject to an intensive corrections order. That sentence will commence today. There are standard conditions the most important of which is to be of good behaviour. You will have to report to Community Corrections Wollongong within seven days of today's date; make a phone call first thing Monday or this afternoon. There will be supervision for as long as Community Corrections deem necessary.
2. The additional conditions are: 1. That you complete 250 hours of community service. That will be subject, of course, to pandemic restrictions, but you will have plenty of time, I think, to complete that over the period 2. That you accept the guidance and supervision of Community Services NSW and obey all reasonable directions of that service, for as long as deemed necessary, particularly regarding referral to a General Practitioner and engagement in a Mental Health Care Plan.
3. These orders will mean that you are restricted in your personal life, your work life and your capacity to interact with your family, but that is part of the punishment that you brought upon yourself. Do you understand? OFFENDER: Yes, sir. HIS HONOUR: Thank you, Mr McGonigal, thank you, Mr Anderson, Mr Morrison.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2022