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District Court 27 May 2013

R v Nathan John MASCLET

[2013] NSWDC 139

Assault & violence
CRIMINAL LAW PARTICULAR OFFENCE RECKLESSLY CAUSING GRIEVOUS BODILY HARM GLASSING PURPOSE OF SENTENCE GENERAL DETERRENCE

Citation: R v Nathan John Masclet [2013] NSWDC 139
Court: District Court of New South Wales
Date: 27 May 2013
Judge(s): Cogswell SC DCJ

Background

In the early hours of 3 March 2012, the offender became involved in a street altercation outside a Bathurst hotel after a night of heavy drinking. During a push-and-shove confrontation with the victim, the offender punched him while holding a schooner glass. The glass shattered on impact, causing a deep laceration to the victim's left eye and eyebrow. The injury was so severe that the victim's left eye had to be surgically removed.

The offender was arrested shortly after the incident and, once sober, made admissions to police. He pleaded guilty at the earliest available opportunity in the Local Court and was committed for sentence in the District Court. He was 20 years old at the time of sentencing.

The offender had a prior record involving two assault offences dealt with by the Children's Court, for which he received bonds, and one adult matter resolved without conviction under a conditional discharge. In the period between the offence and sentencing, he had stopped drinking entirely, changed his social circle, commenced a stable relationship, and was expecting a child.

  • What sentence was appropriate for an offence of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900, where the maximum penalty is 10 years and the standard non-parole period is 4 years?
  • What weight should be given to general deterrence in the context of alcohol-fuelled glass violence in licensed venues?
  • How should the court balance the seriousness of the offending, the offender's prior history of violence, and evidence of genuine rehabilitation and personal change?
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory default of 75 per cent of the head sentence.

Decision

Cogswell SC DCJ identified general deterrence as a significant sentencing consideration. His Honour noted the persistent social problem of alcohol-fuelled violence involving glass injuries in and around hotels, and the devastating and permanent harm caused to the victim.

At the same time, the court gave considerable weight to the offender's youth, his early guilty plea (attracting a 25 per cent discount), his genuine remorse expressed in the witness box, and the substantial personal changes he had made since the offence. A psychologist's report assessed the offender as falling in the high to moderate risk range for re-offending, but the court weighed that assessment against evidence of completed counselling, strong family support, and a meaningful change in lifestyle.

The court accepted that the offence was spontaneous and unpremeditated, arising from an emotionally turbulent period marked by relationship breakdown and escalating alcohol dependence. His Honour found that the offender had reasonable prospects of rehabilitation, and that these prospects, combined with his age and the need for ongoing alcohol treatment, constituted special circumstances warranting a reduction in the non-parole period below the statutory default.

On the question of special circumstances, the court reduced the non-parole period from 75 per cent to just over 50 per cent of the head sentence, citing the offender's age, the fact that this was his first time in custody, and the need for continued alcohol dependence treatment and support during the parole period.

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900.
  • A sentence of imprisonment of 3 years and 9 months was imposed, commencing 26 May 2013 and expiring 25 February 2017.
  • A non-parole period of 1 year and 11 months was fixed, commencing 26 May 2013 and expiring 25 April 2015.
  • The balance of term was set at 1 year and 10 months, commencing 26 April 2015 and expiring 25 February 2017.
  • The sentence was backdated by one day to account for time already spent in custody.
  • The psychologist's report was directed to be forwarded to Corrective Services.

Key Takeaways

  • Alcohol-fuelled glassing in and around licensed venues carries significant weight in general deterrence considerations, particularly where the physical harm is catastrophic and permanent.
  • A 25 per cent sentence discount applied where a guilty plea was entered at the earliest available opportunity, consistent with established sentencing principles.
  • Offences dealt with by the Children's Court, while forming part of the offender's criminal history, received reduced weight; a single adult matter resolved under a conditional discharge was given no weight at all.
  • Special circumstances reducing the non-parole period below the 75 per cent statutory default can be established by a combination of factors including the offender's young age, first time in custody, and demonstrated need for ongoing rehabilitation and treatment.
  • Conflicting evidence about the risk of re-offending, including a psychologist's assessment placing the offender in the high to moderate risk category, does not preclude a finding of reasonable prospects of rehabilitation where it is supported by concrete evidence of personal change.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm; maximum penalty 10 years; standard non-parole period 4 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (conditional discharge without conviction, referenced in relation to the offender's adult record)

Cases cited: None stated in the judgment.