R v McNally

Medium Neutral Citation: R v McNally [2025] NSWDC 333

Hearing dates: 26 June 2025

Date of orders: 26 June 2025

Decision date: 26 June 2025

Jurisdiction: Criminal

Before: Haesler SC DCJ

Decision: Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months

Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
MENTAL HEALTH — Criminal proceedings — Defence of mental illness — Offender elected criminal jurisdiction
SENTENCING — Aggravating factors — Home of victim or any other person
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of his or her actions because of the offender’s age or any disability — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Mental illness — Dangerousness — Assistance to law enforcement authorities considered
SENTENCING — Subjective considerations on sentence — Drug addiction — Severe mental health issues — Schizophrenia

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited: 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 v R [2021] NSWCCA 273
R v Geddes (1936) 36 SR (NSW) 554
R v Henry [2007] NSWCCA 90
R v Israil [2002] NSWCCA 255
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Verdins [2007] VSCA 102
R v Windle [2012] NSWCCA 222
R v XX [2017] NSWCCA 90
Stobinski v R [2025] NSWCCA 97
Tepania v R [2018] NSWCCA 247
Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629

Category: Sentence

Parties: Jay Robert McNally (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation: Counsel:
E Renard (for the offender)
Solicitors:
Tony Cullinan Lawyers (for the offender)
K Malcolm solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2024/38622

JUDGMENT – ex tempore revised

Introduction

1. On 22 January 2024 a disturbing incident occurred at a quiet hamlet on the New South Wales South Coast. Jay McNally, while armed and floridly mentally ill, entered two homes intending to commit serious offences. Thankfully, the residents of both homes were not present, but what occurred, it is acknowledged, must have had, and will continue to have, an impact on them and on the local community.

2. Sentencing offenders who suffer from a mental illness raises difficult questions of judgment and assessment. Those problems are exacerbated where serious crimes are committed, and there is no doubt these were serious crimes. These problems have been described as “to an extent intractable”: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1] (Basten JA). They require “sensitive discretionary decisions”: Engert v R (1995) 84 A Crim R 67 (Gleeson CJ).

Agreed Facts

3. There are Agreed Facts before the Court. Jay McNally, born in 1991, then aged 32, was living with family in the hamlet. One of his sisters and her partner lived in an apartment within the same building. Their next-door neighbour had lived there for many years. She had recently fostered a child.

4. On this day, McNally was drinking. It is now accepted that he had undiagnosed Schizophrenia. In addition, at some stage in the days prior, had also used methamphetamine. He was alone in his bedroom. He began to hear voices. He later told police they were talking about him. He thought one of those voices was his neighbour. He grabbed a knife and a hatchet from his bedroom, jumped over the fence and went to the neighbour’s home. He gained entry via the unlocked sliding glass door. He searched the house, screaming, “come out come on out or I’m going to kill you”. Thankfully, no‑one was home, the resident and her child had left to go into town.

5. A neighbour heard sporadic and aggressive shouting come from that area. Another neighbour saw the offender standing near the neighbour’s house, holding up a knife and yelling. He then saw McNally walk down a laneway towards his own home.

6. The offender later made admissions about entering the neighbour’s property with the knife and hatchet. He admitted to saying he was screaming and yelling out that he would stab her. He said, “I just wanted to find her and tell her and kill her husband”. She lives there with her foster child, not her husband.

7. When she returned, she noticed no damage but saw one of the trees in the front yard had been hacked at.

8. The second offence occurred immediately afterwards when he went to the flat adjacent to his home, where his sister and her partner lived. He searched the house, screaming out. He went into the residents’ bedroom, but they had left earlier that morning to go to work and they were not home. A neighbour called the police to report the incident. He saw McNally banging on the doors of two homes in the same street, armed with a knife. He said he was using an axe on the tree in the yard saying, “if you want to talk shit”.

9. The offender later admitted to entering his sister’s and her partner’s apartment armed with a knife and a hatchet. Speaking generally of both premises, he told police, “I want to kill them, and I want to kill them”.

10. Police were called. They spoke to him. He participated in an interview. He told police what he could remember. He said that he was plotting to kill them because he was “sick”. He said his head was “racing [a] thousand miles an hour”. He later told police he would have tortured his sister’s partner. He said that previously he had had friendly relationships with the neighbour.

11. On 23 January 2023, he was taken to a mental health hospital. He was admitted as a mentally ill patient and held there. He was noted to be suffering acute psychotic features, including auditory hallucinations and delusions. Medical notes suggested a possible diagnosis of methylamphetamine-induced psychosis. He was admitted to the high care mental health unit.

Mental health condition

13. A report was obtained by his solicitors from Dr Richard Furst, a respected forensic psychiatrist. After taking a history and reviewing documentation, Dr Furst formed the view that the initial diagnosis of drug‑induced psychosis was not correct. In his opinion, McNally had an Alcohol Substance Use Disorder but, more importantly, suffered from Schizophrenia which had not previously been diagnosed. He notes “schizophrenia is a chronic and severe mental disorder … characterised by distortions in thinking, perception, emotions, language, sense of self and behaviour”. He said at pp 6-7 under the heading “Diagnosis” that “Schizophrenia …. is not fully understood … Treatment generally involves a combination of antipsychotic medication and psychosocial support, including case management and assertive psychiatric follow-up”.

14. He concluded that at the time he spoke to him McNally was fit to plead and participate in court proceedings, but in Dr Furst’s opinion was he was so acutely psychotic that he may have had a significant mental health impairment and he could have availed himself of it; what is commonly called the defence now spelled out in s 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

Guilty pleas

15. As he was fit to plead, McNally made an informed decision, to enter pleas of guilty rather than to take the mental health option, when the matter was before the Local Court. That is his choice. But the matter now falls for determination in the criminal jurisdiction.

16. Two pleas were entered to offences of aggravated break and enter with intent to commit an indicatable offence while armed: Crimes Act 1900 (NSW), s 113(2). For Sequence 1, the matter involving the neighbour, the intent was intimidation. For Sequence 2, the entry to the apartment occupied by his sister and her partner, the intent was to cause grievous bodily harm.

17. The maximum penalty for those offences is 14 years’ imprisonment**.** The Court must pay some attention to the guidance offered by maximum penalties.

18. The pleas of guilty require I reduce the otherwise appropriate sentences by 25% for their utilitarian value. I will take care that the process of aggregating the indicated penalties does not erode that benefit. McNally also co-operated with the course of justice. He accepted criminal responsibility for his acts. His early admissions helped found the charges, particularly in regard to his intention. His guilty plea meant the harms done to his victims were not compounded by them having to give evidence at trial.

19. A defence submission was made that the information provided constituted admissions of unknown guilt and assistance such that s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) was enlivened. The Crown opposed that submission. The mere fact an offender participates in a recorded interview and makes admissions about the offence does not amount to assistance within the meaning of s 23(1): Le v R [2019] NSWCCA 181 at [53]-[54], [56]; Browning v R [2015] NSWCCA 147 at [123]. In any event, there was sufficient evidence to arrest and detain the offender. He certainly cooperated with the police and his admissions enabled them to formulate the charges that are now before the Court. That cooperation with the course of justice has been taken into account.

20. Just because assistance is capable of falling within the ambit of s 23 does not necessarily led to the imposition of a lesser sentence. There are two reasons for that; the first, is the decision depends on the application of the criteria in s 23(2): R v XX [2017] NSWCCA 90 at [56]. Secondly and importantly here, after the application of 23(3) any lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.

21. Because I am dealing with this matter at law there are a number of conflicting provisions, to which I will soon refer. I have sought to fix the minimum period that must be spent in custody as low as I believe I can. To reduce it further by an added percentage, other than that required for the guilty plea, would lead to a result that would be disproportionate to the seriousness of the offences. As I noted above, I have taken into account as best I can, matters that go beyond the purely utilitarian value of the guilty pleas.

Seriousness

22. I have to identify matters that inform the objective seriousness of the offending and reflect on it. As the High Court made clear, I do not engage in a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120 at [28].

23. Justice McHugh in Markarian cautioned that about concentrating on the objective seriousness of the crime because there was a risk that a judge might give ultimately greater weight to the retributive or deterrent theory of sentencing rather than a holistic view which synthesis all relevant factors. Not every matter in a sentencing exercise needs to be fitted into categories. Human behaviour and characteristics are too varied. A sentencing exercise involves the “synthesis of competing features, which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time”: Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629.

24. The objective of the seriousness of the crime can include here factors personal to the offender causally connected materially contributing to the commission of the offence. McNally’s schizophrenic illness and the disorder that he was suffering from must be taken into account: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325]; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [55]-[56] [171]-[172].

25. I cannot, however, take into account his self-induced intoxication: Crimes Sentencing Procedure Act, s 21A(5AA).

26. Section 113 offences and the matters of aggravation that apply to them vary considerably. I am not helped by attempting to fix this offending on some notional range. In most such matters there is a direct confrontation between the victim and the offender, and in many cases, serious physical harm results. There was no direct confrontation here.

27. The offence involved the invasion of the two homes. As the Crown rightly submit, people are entitled to the sanctity of their home. He went into people’s homes with dangerous weapons. To have someone enter that home say and do things which carry with them a sense of threat would induce in any homeowner a sense of dread. And, as the material I will soon refer to establishes, what McNally did, caused them to be apprehensive about future invasions where they might be present. The impact of such crimes should not be underestimated; it is what makes these two offences so serious.

28. McNally was armed. He was armed with two potentially deadly weapons. His intent was to use those weapons, even though that intent was inherently interlinked with his mental illness. That does not reduce the sense of dread that those who found out about what occurred would have felt. While no-one was hurt physically or directly threatened, the implied threat would, and continues, to remain.

Victim impact

30. I have received Victim Impact Statements from the residents of the homes, all of whom were, thankfully, away that morning. Each of them attests to the harm each victim suffered and their economic consequences and losses. I have no difficulty accepting what is set out in each Victim Impact Statement. They serve the very practical purpose of drawing to the offender’s, the Court’s and the community’s attention, the harms caused by these crimes. And here in particular, the continuing sense of apprehension and dread that will follow from the offender’s inevitable release into the community.

31. His sister said she still suffers shock, sadness, anger and confusion. She has had to take time off work. She has suffered from telling people her brother is in gaol. Her relationship suffered. Both she and her now ex-partner put this matter down as one of the key factors that led to their breakup. She said:

“I live back at home now, which makes me feel uncomfortable and would not feel comfortable or safe if he were to come home.

I do not trust Jay.

I mentally and emotionally cannot sit and write any more, the impact on my life has been profound.”

32. Her former partner spoke of the emotions he felt; starting with confusion and then fear because someone he trusted did what he did without warning. He speaks of the economic cost of moving, installing security systems, having to stay in other places. He speaks of the pressure and stress that led to the breakup of his long-term relationship with the offender’s sister. He describes the event as the “most difficult and challenging time of [his] life” and believes it will take him “quite some time to get over [it]”.

33. The neighbour also prepared a statement to the Court. She had lived next door for over 20 years. She had welcomed a foster child into her home. This caused her additional concerns as taking on a foster child carries with it an actual promise, that she will keep that child safe and provide a loving and safe home environment for them. She was “devastated that this could have happened to [her]” and to her small “community generally”. She fears repetition of the offence. She feels unsafe in her home and has spent considerable sums installing security in her home. She says,

“My life has been altered significantly since the incident. I no longer feel completely safe in my home and I have become hypervigilant, especially in relation to my child … Further, I am afraid the defendant will return to live next door and if that happens I will be forced to sell my home and move. I love my home and should not feel compelled to leave due to the actions of another person.”

34. Those understandable reactions to offences of this nature further underlie my finding that psychological harm of crimes such as this can be treated as seriously as those where physical harm was suffered, particularly because of the ongoing psychological harm created by the offence.

35. Today I heard from McNally’s stepfather. He has, before and after the event, continued to provide support for him. He is acutely conscious of the harm that this offence caused the offender’s sister, their family, his sister’s former partner and his next-door neighbour of over 20 years. He could not have, nor could anyone have, predicted that this would occur. The underlying condition McNally suffers from had not been then diagnosed. He has sought, as best he can, to provide support for McNally. He has sought as best he can to put in place a plan for McNally’s eventual release.

36. I am aware that there are proceedings for Apprehended Personal Violence Orders are presently before Milton Local Court. The current plan is that they go for five years, and they will prohibit McNally from entering the local hamlet where he resided and where his family reside.

37. Arrangements can be put in place for McNally to reside about eight kilometres away at a rural location. His stepfather will welcome McNally into his business, landscaping and gardening, where he has worked before. Support will be provided so that he can attend doctors, supermarkets. Arrangements can be put in place to avoid, where possible, running into the victims of his offences. Things can go wrong even with the best plans. But he has family support and people are vigilant of him.

38. I am sure McNally is very regretful for what occurred and the consequences of his acts. I do not believe, in a formal sense, he is remorseful because he has still got a lot of healing to do himself. What he did, when he is able to fully process it, will not make much sense to him; because what he did was informed by his mental illness. However, he has to understand, for a number of reasons, that his actions had consequences and will have lasting consequences for him for perhaps the rest of his life, not just for any parole period that I might impose.

Case for the offender

39. McNally is still young. He has family in the local area. He went to primary and high school and studied at TAFE. He has interests as a surfer and a gardener. He came to the attention of health professionals for a possible diagnosis of Attention Deficit Hyperactivity Disorder and received medications. There is a history of behavioural problems and anger issues. He was admitted to Shellharbour Hospital when he was 17, with severe depression and suicidal ideation. He had a further admission following the commission of these offences. He lost his mother to pancreatic cancer in 2022, a matter that had a major impact on him.

40. He told Dr Furst he had started hearing voices about three months before the incident and that he continued to hear voices up until his arrest.

41. He has a history of problematic drinking going back to when he was very young. He also reports some cannabis use and use of methylamphetamine from 2020. Sometimes he used that drug every few days. He last used that drug, he said, four days prior to the offending. When Dr Furst considered that history he discounted drug-induced psychosis and reached the conclusion, which is set out fully in his report, that McNally suffered from the mental illness, Schizophrenia.

42. I take into account his prior good character, I ignore the one minor matter on his criminal record

43. Dr Furst reports that McNally may present a greater risk to the community because of his illness but concludes that “the greatest risk in terms of violence to self and others [generally occurs during] … the first episode of psychosis, prior to the person being diagnosed and treated”. He notes that McNally has been working diligently “with mental health nurses and his psychiatrist … while in custody” and that he has stabilised while in custody.

44. On release, Dr Furst recommends he be placed under the community mental health team and a treatment plan be put in place, which he sets out on p 5 of his report. He notes that he would benefit from this plan “especially if he can achieve ongoing stability of his mental health and maintain abstinence”. McNally should remain under the care of the mental health nurse and receive regular reviews. He should continue to take his prescribed medication. He would benefit from drug and alcohol counselling.

45. A copy of Dr Furst’s report of 28 May 2025 will be sent with the warrant for the State Parole Authority.

Submissions

46. I have had the benefit of written submissions and submissions on behalf of McNally and the Crown, both oral and in writing. I just want to address a couple of them.

Mental health and moral culpability

47. A judge in any sentencing exercise should address the offender’s moral culpability. I was referred to the seminal decision of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. I have said in other judgments, which I will not go to in any detail, that the first principle at [177] may need to be revisited in the light of recent decisions about how a person’s reduced moral culpability should be considered on sentence. Objective seriousness and moral culpability are separate but related concepts. A determination of moral culpability involves a consideration of a wider set of factors affecting the offender than those that go to objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [63]-[96]; see most recently Stobinski v R [2025] NSWCCA 97.

48. The Court recognises that mental illness can reduce moral culpability, and here it clearly does, and such conditions make denunciation less relevant as a sentencing principle. They can bear on the structure and type of sentence imposed and they can, as here, mean that the offender suffers more by being in custody than a person without such illness. All those factors must be taken into account. As Dr Furst points out, there are always risks that imprisonment can have an adverse impact on a person’s mental health.

49. Here, clearly McNally’s mental illness must result in the amelioration of his moral culpability with a consequent reduction in the need to denounce the crime. That does not mean he bears no moral responsibility, but his mental illness must be taken into account in this respect.

Dangerousness

50. The authorities also refer to issues relating to the protection of individual victims and the community. These are important considerations as, a person may because their mental illness present f a danger to the community: Engert. In these circumstances, considerations of specific deterrence can result in an increase in the sentence because someone needs to be removed from the community for a longer period, although that period must be proportionate to what they did: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [2007] NSWCCA 90 at [28]

51. As Justice Basten J reminded us, care has to be taken in such matters*:* R v Windle [2012] NSWCCA 222. The potential for ‘unprincipled sentencing’ under the guise of community protection, particularly where the mental illness operated to reduce an offender’s moral culpability, has to be guarded against. His Honour noted that the criminal law is not an appropriate mechanism for protecting society where the potential danger is a result of mental illness. But that said, McNally chose the criminal option, and I must take into account and synthesise all relevant matters.

52. Specific deterrence is also important here because Mr McNally has to understand that; if he does not take his medication, if he does not keep to the conditions of his parole, if he does not keep to the conditions of the Apprehended Personal Violence Orders, he could be arrested and returned to gaol. That threat must be kept hanging over him. I am sure it will be reinforced by those who support him in the community. He must learn to apply that knowledge. He will need incentives to do so and a return to gaol might be such an incentive: De La Rosa at [177].

Totality

53. I have to impose appropriate sentences for each matter: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. I have to consider the overall criminality and fix an appropriate aggregate term that covers all of what he did, the evidence relating to his need for support in the community.

54. He will need help adjusting to normal community life. Thankfully, that support is available to him. This will require a significant finding of special circumstances. However, for the same reason I cited in relation to s 23 issues, I am mindful of the requirement the minimum period for which he should be imprisoned must properly reflect the seriousness of his offence and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Synthesis

55. There are some matters that aggravate the sentence, there are some that mitigate. There is no golden rule: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65]. Deterrence of others is of less importance here, but protection of the community is of great importance in such matters: Engert at [68].

56. The Court is also concerned with the impact of the offender’s impairment on the offence and the offender’s future: R v Verdins [2007] VSCA 102 at [3]; De L**a Rosa at [177]-[178]; Engert. As I understand it, his schizophrenic illness will stay with him for the rest of his life. It can be managed in the community with medication and support. If he resumes the use of illicit drugs, that will significantly interfere with his treatment regime. And if he resumes the use of illicit drugs, he may not think clearly enough to continue to take the help that is being offered to him when he gets released.

57. The key to this matter is the plan for his future. At the moment, there is a plan; with a safe residence, protection by Apprehended Personal Violence Orders, protection by support from Probation and Parole, engagement in a mental health care plan, work and support in the community. I will give full weight to that critical aspect.

58. The Court also has to consider victim vindication and recognise the harm that these crimes caused. The Court has to try and structure a sentence with the future in mind and one can never predict entirely what will happen in the future. Prior behaviour is one good indication of future behaviour, and it is clear that this particular episode was an aberrant period during the offender’s life when his underlying illness first manifested into psychosis.

59. Ultimately, community protection is best achieved if a person can be treated and rehabilitated in the community. That entails some risk, but the offender cannot be kept in custody indefinitely; he should be motivated to change. And the victims of this offence have to understand that fact. The longer he can be supervised in the community the better. He can be kept in custody so that a plan can be put in place and then released subject to that plan. I can expect that their concerns will never be alleviated, at least they can take some comfort in the fact that the courts and the community support services are doing everything they can, and that by his behaviour in custody McNally has deserved the support and the leniency offered by the Court.

60. The orders take into account the pleas of guilty and the other matters to which I have referred.

Orders

1. In relation to Sequence 1 – There will be a sentence of 2 years and 7 months indicated.

2. In relation to Sequence 2 – 2 years and 10 months indicated.

3. There will be a total sentence of 3 years and 6 months. There will be a non-parole period of 1 year and 9 months which will date from 31 January 2024, making McNally eligible for consideration for release to parole on 30 October 2025. The parole period of 1 year and 9 months will start the following day. The sentence will expire on 30 July 2027.

4. Release to parole will not be automatic. Release to parole requires a decision of the State Parole Authority. The State Parole Authority has a legislative requirement that community safety concerns must be able to be met before a person is released to parole. That means a plan has to be put in place and approved by that authority before release.

5. HIS HONOUR: Did you understand that, Mr McNally?

6. OFFENDER: Yes, your Honour.

7. HIS HONOUR: In basic terms, sir, you get out in October if the Parole authority allows it. You will have to keep to all the conditions of your parole, and you will have to keep to the condition of the Apprehended Personal Violence Orders. If you keep to those conditions and you continue treatment and medication, stay away from illicit drugs, you could avoid going back to gaol. If you see your sister or your neighbour or anyone connected with the offence you are to walk the other way. Do you understand?

8. OFFENDER: Yes, your Honour.

9. HIS HONOUR: What you did caused them great concern, and they will be concerned about you for the rest of their lives because they felt, and were, personally targeted by you. They may not understand that that was caused or causally related to your mental illness. They will fear it might happen again. You have to understand that contact with them in the future is not in their interest and certainly not in yours.

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