R v Almeida

Citation: [2026] NSWDC 69
Court: NSW District Court (Criminal)
Date: 27 March 2026
Judge(s): Newlinds SC DCJ

Background

The offender, a 22-year-old man born in March 2004, was found guilty by jury of one count of wounding with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years.

The offence arose from events on New Year's Eve 2023 in Woolloomooloo, Sydney. The offender attended a rooftop party to watch the fireworks. After the fireworks, he became part of a group walking along Dowling Street. An altercation developed in which a large group of young people — perhaps a dozen — surrounded the offender, directing verbal abuse, threats, and physical assaults at him. He was significantly outnumbered. One member of the group, Mr Gallaro, knocked the offender to the ground, and others attempted to kick and punch him while he was down. The sentencing judge described the group's conduct as "disgraceful" and involving "significant amounts of criminal conduct."

The offender managed to get to his feet and produced a knife. He stabbed Mr Gallaro — for which the jury acquitted him, apparently on the basis of self-defence — and then ran south along Dowling Street. Mr Clarke, a larger man who had been part of the group, chased the offender despite having clearly seen the knife. When the offender stopped at the top of the street, he swung the knife and struck Mr Clarke in the neck, causing a 5 cm laceration that penetrated through neck muscle adjacent to the spinal column. Mr Clarke required emergency surgery and was hospitalised until 3 January 2024. This stabbing of Mr Clarke was the subject of the conviction. The offender had been diagnosed with Autism Spectrum Disorder (ASD) and Post-Traumatic Stress Disorder (PTSD), which featured prominently in the sentencing exercise.

Legal Issues

• Factual basis of the jury's verdict: On what factual basis — consistent with the jury's guilty verdict — should the court sentence the offender? Specifically, was the conviction based on the offender lacking a genuine subjective belief in the need for self-defence, or on the basis that his response, while subjectively believed to be necessary, was objectively unreasonable ("excessive self-defence")?

• Moral culpability in excessive self-defence: How should the sentencing judge assess moral culpability where the offender subjectively believed his actions were reasonably necessary to protect himself, but his response was found to be objectively disproportionate?

• Impact of the offender's mental health conditions: What weight should be given to diagnoses of ASD and PTSD in assessing the offender's culpability and prospects of rehabilitation, including in the context of the Bugmy v The Queen principles regarding disadvantaged backgrounds?

• Application of the standard non-parole period: How should the standard non-parole period of seven years be applied in circumstances of significantly reduced moral culpability?

• Relevance of the victim's conduct: To what extent does the conduct of the victim (Mr Clarke) in chasing the armed offender reduce the offender's culpability?

Decision

Newlinds SC DCJ undertook a careful analysis of the factual basis for the conviction, as required by Savvas v The Queen (1995) 183 CLR 1. His Honour was not satisfied beyond reasonable doubt that the offender lacked a genuine subjective belief that stabbing Mr Clarke was reasonably necessary to protect himself. The offender had been assaulted by a group, had been knocked to the ground, and was being chased by a larger man who continued to pursue him despite knowing he was armed with a knife. The judge therefore sentenced on the basis that the conviction rested on the "objective" limb of self-defence — the offender's response, while subjectively believed to be necessary, was objectively not a reasonable response in the circumstances as he perceived them. This is the classic "excessive self-defence" finding.

His Honour rejected the Crown's submission that the offender had gone out that evening armed with a knife looking for trouble. While acknowledging the offender should not have been carrying a knife and should have gone home when told to do so after the rooftop incident, the judge found the video evidence showed the offender was, in his own "awkward way," attempting to socialise with the group rather than provoking a confrontation. The medical evidence — not before the jury — explained this behaviour as consistent with the offender's ASD.

The sentencing judge found that the offender's moral culpability was significantly reduced by several factors: the excessive self-defence finding; the serious provocation and criminal conduct directed at the offender by the group; Mr Clarke's own decision to chase an armed person; and the offender's mental health conditions (ASD and PTSD), which affected his capacity to read social situations and regulate his responses. His Honour applied the Bugmy principles in recognising the offender's deprived background and its ongoing effects. The judge also noted the offender had strong subjective features, including prospects of rehabilitation.

In assessing the appropriate sentence, the court treated the standard non-parole period of seven years as a guidepost (Muldrock v The Queen) but found this was well below the mid-range of objective seriousness, warranting a significant departure. The combination of the excessive self-defence finding, the offender's personal circumstances, and the strong subjective case led the court to impose a sentence substantially below the standard non-parole period.

Orders Made

Note: The judgment text provided was truncated and did not include the final sentencing orders. The specific term of imprisonment, non-parole period, and any other orders made cannot be confirmed from the available text.

Key Takeaways

• Where a conviction rests on the objective limb of self-defence, meaning the offender genuinely believed their actions were necessary but responded disproportionately, moral culpability is significantly reduced for sentencing purposes. The District Court drew a clear distinction between the two bases on which self-defence may fail, holding that this distinction carries substantial sentencing implications.

• Consistent with Savvas v The Queen, the sentencing judge must independently determine the factual basis for conviction where the jury's reasoning is not apparent from the verdict alone, and findings adverse to the offender must be proved beyond reasonable doubt.

• The District Court found that the victim's conduct was relevant to sentencing, holding that Mr Clarke's decision to actively pursue the offender in circumstances of obvious danger (chasing a person known to be armed with a knife) reduced the offender's culpability, though it did not excuse the offence.

• Mental health diagnoses, particularly ASD and PTSD, were recognised as highly relevant to explaining the offender's behaviour leading up to the offence and to assessing moral culpability, future dangerousness, and prospects of rehabilitation. The Court relied on evidence not before the jury in making its sentencing findings.

• Consistent with Muldrock v The Queen, the standard non-parole period was treated as a guidepost rather than a starting point, confirming that it applies to a mid-range offence and does not constrain the Court where the offence falls significantly below that level of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14

Cases:
- Savvas v The Queen (1995) 183 CLR 1
- Muldrock v The Queen (2011) 244 CLR 120
- Bugmy v The Queen (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- Fisher v R [2026] NSWCCA 27
- R v White [2025] NSWCCA 111
- R v Amati [2019] NSWCCA 193
- La v R [2021] NSWCCA 136
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- KT v R [2008] NSWC