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District Court 29 September 2021

R v McAlister

[2021] NSWDC 541

Assault & violence
CRIME RECKLESS WOUNDING

Citation: R v McAlister [2021] NSWDC 541
Court: District Court of New South Wales
Date: 29 September 2021
Judge(s): Yehia SC DCJ

Background

The offender was sentenced for offences arising from violence at the Glasgow Arms Hotel in Ultimo on the late evening of 27 June 2020. He had consumed approximately 15 standard drinks throughout the day and evening. Two separate incidents of violence occurred involving the same victim.

The first incident, inside the hotel, involved the offender punching the victim multiple times, with a co-offender also becoming involved. The second incident occurred outside, one minute later. The victim lunged at the offender as both exited the premises. The offender swung his arm at the victim's face while holding a schooner glass, shattering it and causing a 6cm deep laceration to the victim's forehead and three other superficial lacerations. The victim suffered both physical and psychological harm as a result, and retains a facial scar.

The offender pleaded guilty on 25 June 2021, shortly before his trial was listed to commence, during negotiations at the Sydney Super Call Over. A 25% discount was applied to reflect the utilitarian value of the guilty plea. The court noted the plea was entered during the COVID-19 pandemic, when jury trials were suspended only days later, and that the plea spared the victim from giving evidence.

  • What weight should be given to general and specific deterrence, denunciation, punishment, and community protection in the sentencing exercise?
  • Does a background of childhood deprivation and disadvantage reduce the offender's moral culpability, and is a causal connection required between that background and the offending?
  • Whether the offender's Substance Use Disorder (specifically Alcohol Use Disorder) can be taken into account as a mitigating factor, and whether doing so is prohibited by s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should objective seriousness be assessed, and can matters personal to the offender inform that assessment?

Decision

Objective seriousness and moral culpability

The court assessed the objective gravity of each offence as a necessary first step in sentencing. On the reckless wounding charge (Count 2), the court noted that the victim had instigated the second confrontation by lunging at the offender, which was a relevant factor in assessing moral culpability, though it did not diminish the seriousness of the injuries caused. The court engaged with the contested question of whether subjective matters personal to the offender, such as intellectual disability or mental health, can inform the assessment of objective seriousness, drawing on Muldrock v The Queen and subsequent Court of Criminal Appeal authority.

Childhood deprivation and moral culpability

The court considered the principles from Bugmy v The Queen (2013) 249 CLR 571, which established that a background of childhood deprivation and disadvantage can reduce moral culpability in sentencing. Consistent with the High Court's reasoning in Bugmy, the District Court applied this principle without requiring a strict causal connection between the offender's deprived background and the specific offending conduct. The offender's subjective history was treated as a genuine mitigating consideration.

Substance Use Disorder and s 21A(5AA)

Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits a court from treating an offender's intoxication at the time of the offence as a mitigating factor. The court examined whether taking into account the offender's diagnosed Alcohol Use Disorder, as distinct from mere voluntary intoxication, was contrary to that provision. The court's analysis addressed the interplay between the offender's mental health, his deprived background, and the development of his substance use disorder, treating the disorder as part of his broader subjective circumstances rather than as a straightforward plea of intoxication.

Sentence

After applying the 25% discount for the guilty plea, considering the offender's subjective circumstances (including childhood deprivation, mental health issues, and Substance Use Disorder), and balancing the competing purposes of sentencing, the court imposed an aggregate term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months. A finding of special circumstances was made, which justified the variation from the standard ratio between the non-parole period and the balance of the term.

Orders Made

  • Offender convicted on Count 1 (assault occasioning actual bodily harm in company), Count 2 (reckless wounding), and Sequence 3 (affray).
  • Indicative sentence for Count 1: 14 months' imprisonment.
  • Indicative sentence for Count 2: 2 years and 6 months' imprisonment, with a non-parole period of 1 year and 4 months.
  • Indicative sentence for Sequence 3: 9 months' imprisonment.
  • Aggregate term of imprisonment of 3 years imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 27 January 2021 and expiring 26 February 2024.
  • Non-parole period of 1 year and 6 months fixed, commencing 27 January 2021 and expiring 26 July 2022.

Key Takeaways

  • A background of childhood deprivation and disadvantage can reduce an offender's moral culpability at sentencing, consistent with Bugmy v The Queen. The District Court applied this principle without requiring a direct causal link between the deprived background and the commission of the particular offences.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), voluntary intoxication cannot be treated as a mitigating factor. However, a diagnosed Substance Use Disorder, particularly where it is connected to the offender's mental health history and background of deprivation, may be considered as part of the broader subjective circumstances.
  • Assessing objective seriousness involves an examination of the facts and circumstances of the offence itself. The victim's own role in initiating the second confrontation was a relevant consideration in calibrating moral culpability for that count.
  • A finding of special circumstances permits the court to depart from the standard ratio between non-parole period and total sentence, providing a longer period of supervision on parole where the offender's circumstances warrant it.
  • Sentencing tables and comparable cases assist as a reference point, but the District Court noted they do not produce a discernible pattern that mechanically determines the outcome in any individual case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(4), 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5AA), 53A, 54A, 54B
- Crimes (Sentencing Procedure) Amendment (Standard Non-Parole) Act 2013 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25
- Craft v R [2021] NSWCCA 131
- DPP v Herrmann [2021] VSCA 160
- Fisher v R [2021] NSWCCA 91
- Kelley v R [2021] NSWCCA 173
- Kliendienst v R [2020] NSWCCA 98
- McKinnon v R [2020] NSWCCA 106
- McLaren v R [2012] NSWCCA 284
- Osborne v R [2015] NSWCCA 260
- R v Merillo [2017] NSWCCA 173
- R v Millwood [2012] NSWCCA 2
- Rossall v R [2021] NSWCCA 200
- Scott v R [2020] NSWCCA 81
- Subramaniam v R [2013] NSWCCA 159
- Tepania v R [2018]