McAlinden v Clifton

Case [2010] WASC 387


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   McALINDEN -v- CLIFTON [2010] WASC 387

CORAM:   SIMMONDS J

HEARD:   5 NOVEMBER 2010

DELIVERED          :   17 DECEMBER 2010

FILE NO/S:   SJA 1083 of 2010

BETWEEN:   SEAN GARY PATRICK McALINDEN

Appellant

AND

DARREN ROBERT CLIFTON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T J McINTYRE

File No  :MH 2266 of 2010

Catchwords:

Criminal law and procedure - Appeal against sentence of 15 months' immediate imprisonment with eligibility for parole for unlawful wounding other than in circumstances of aggravation - Whether sentence manifestly excessive because of its length or because of the failure to suspend it - Wounding by instrument not knife or glass - Consideration of appellate authorities - Younger first offender who had pleaded guilty - Significance of mental condition making a causal contribution together with other factors to offending but not established to be the greatest contributor

Legislation:

Criminal Appeals Act 2004 (WA), s 14(5)
Criminal Code (WA), s 294, s 297(1), s 297(3), s 301, s 317(1)(b)

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr L M Levy SC

Respondent:     Mr M J Walton

Solicitors:

Appellant:     Brennan & Co

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abdullah v The Queen [2002] WASCA 57

Black v The State of Western Australia [No 2] [2010] WASCA 145

Boyle v The State of Western Australia [2010] WASCA 97

Chan (1989) 38 A Crim R 337

Clements v The State of Western Australia [2006] WASCA 69

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Duggan v Coelho [2009] WASC 372

Etrelezis v The Queen [2001] WASCA 327

Evans v Vanderheide [2001] WASCA 352

Gok v The Queen [2010] WASCA 185

Hobbs v The Queen [2001] WASCA 104

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264

Janerka v Bethell [2002] WASCA 198

Krijestorac v The State of Western Australia [2010] WASCA 35

Long v Mayger [2004] WASCA 41

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Messaoui v The Queen (Unreported, WASCA, Library No 9210.1, 4 December 1991) 12

Mitchell v The Queen [2001] WASCA 255

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Mourish v The State of Western Australia [2006] WASCA 257

Plant v Harrington [2010] WASC 364

R v Barbis and Rouse [2003] WASCA 107

R v Tsiaras [1996] 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Scolaro v Shephard [No 2] [2010] WASC 271

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

The State of Western Australia v Camilleri [2008] WASCA 217

The State of Western Australia v Collier [2007] WASCA 250

The State of Western Australia v Jeffries [2007] WASCA 255

The State of Western Australia v Redman [2009] WASCA 1

Trompler v The State of Western Australia [2008] WASCA 265

Wheeler v The Queen [No 2]

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AGLC
McAlinden v Clifton [2010] WASC 387
Case
[2010] WASC 387
Decision Date

CaseChat Overview and Summary

The appeal involved the defendant, McAlinden, against a sentence imposed for unlawful wounding. The case was heard in the Court of Appeal. McAlinden had been sentenced to 15 months' imprisonment, with eligibility for parole, for unlawfully wounding another person. The dispute centred on the appropriateness of the sentence, specifically whether it was manifestly excessive due to its length or because it was not suspended. The appeal contested the severity of the sentence in light of the defendant's age, status as a first offender, and the presence of a mental condition that contributed to the offence, though not being the primary factor.

The legal issues before the court required determining whether the sentence was manifestly excessive, considering the various factors that could mitigate the offence's severity. The court examined the nature of the weapon used, which was not a knife or glass, and how this impacted the sentencing. The appeal also focused on the precedents set by other cases dealing with similar offences and sentences. The court was required to weigh the defendant's age, plea of guilty, and the mental condition's contribution to the crime against the gravity of the offence and the need for general deterrence.

The Court of Appeal found that the sentence was not manifestly excessive. The judges considered the circumstances of the offence, including the weapon used, the defendant's background, and the mitigating factors presented. They held that the sentence, while significant, was appropriate given the need to balance the seriousness of the crime with the mitigating aspects of the defendant's situation. The court upheld the trial judge's decision, confirming that the sentence was neither too long nor inappropriate in failing to be suspended. The appeal was dismissed, and the original sentence was confirmed as correct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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