District Court
New South Wales
Medium Neutral Citation: R v McAlister [2021] NSWDC 541 Hearing dates: 21 September 2021 Date of orders: 29 September 2021 Decision date: 29 September 2021 Jurisdiction: Criminal Before: Yehia SC DCJ Decision: The offender is convicted in respect of each offence. Taking into account a discount of 25% to reflect the utilitarian value of the plea, I set out the following indicative sentences:
Count 1 – the offender is sentenced to imprisonment for 18 months.
Count 2 – the offender is sentenced to imprisonment for 2 years and 6 months, with a non-parole period of 1 year and 4 months’ imprisonment.
Sequence 3 (on a section 166 Certificate) – the offender is sentenced to imprisonment for 9 months.
Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), taking into account a finding of special circumstances, I impose an aggregate term of imprisonment of 3 years.
I fix a non-parole period of 1 year and 6 months’ imprisonment. The offender will be eligible for release at the expiration of the non-parole period.
Catchwords: CRIME – reckless wounding – assault occasioning actual bodily harm in company
SENTENCING – where a background of childhood deprivation and disadvantage operates to reduce moral culpability – whether a causal connection is required between the background of childhood deprivation and the commission of the offences – whether taking into account the Substance Use Disorder is contrary to the prohibition in s 21A(5AA).
Legislation Cited: Crimes Act 1900 (NSW) ss 59(2), 35(4)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(5AA), 53A
Crimes (Sentencing Procedure) Amendment (Standard Non-Parole) Act 2013 (NSW) ss 54A, 54B
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
DPP v Herrmann [2021] VSCA 160
Kliendienst v R [2020] NSWCCA 98
Markarian v The Queen [2005] HCA 25
McKinnon v R [2020] NSWCCA 106
Muldrock v The Queen (2011) 244 CLR 120
Subramaniam V R [2013] NSWCCA 159
Texts Cited: Zachary Weil, John Corrigan and Kate Karelina, ‘Alcohol Abuse after Traumatic Brain Injury: Experimental and Clinical Evidence’ (2016) 62 Neuroscience and Biobehavioural Reviews 89-99.
Category: Principal judgment Parties: Matthew McAlister (Offender)
Director of Public Prosecutions (Crown)Representation: S McGee (Offender)
K McCosker (Crown)
File Number(s): 2020/000191025
Judgment
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Mathew McAlister comes before me to be sentenced for offences arising from the violence perpetrated by him on the late evening of 27 June 2020. He had consumed a significant amount of alcohol and was present with friends at the Glasgow Arms Hotel. Also present, with his group of friends, was the victim.
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What followed will be summarised more comprehensively below. Essentially,…
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- AGLC
- R v McAlister [2021] NSWDC 541
- Case
- [2021] NSWDC 541
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to address were the extent to which the defendant’s background of childhood deprivation and disadvantage could be considered in reducing their moral culpability, and whether such consideration could be made without a direct causal link between the background and the commission of the offences. Additionally, the court needed to determine whether taking into account the defendant's substance use disorder, as a mitigating factor, contravened the statutory prohibition outlined in section 21A(5AA) of the relevant legislation.
In delivering the judgment, the court recognised that while the defendant's background of childhood deprivation and disadvantage was a relevant factor in assessing moral culpability, it did not necessarily require a direct causal connection to the commission of the offences. The court held that such background information could inform the sentencing process, contributing to an understanding of the defendant’s circumstances and potential for rehabilitation. Regarding the substance use disorder, the court concluded that considering it as a mitigating factor did not contravene the statutory provisions, as long as it was done within the confines of the law. The court then proceeded to impose an aggregate sentence of three years imprisonment, taking into account the plea discount and the mitigating factors presented.
In summary, the court found the defendant guilty of the charges and imposed an aggregate sentence that reflected the seriousness of the offences while also considering the mitigating factors. The court set out specific non-parole periods and detailed the indicative sentences for each count, ensuring the overall sentence was proportionate and just.
Orders
Orders of the court
The offender is convicted in respect of each offence. Taking into account a discount of 25% to reflect the utilitarian value of the plea, I set out the following indicative sentences:
Count 1 – the offender is sentenced to imprisonment for 18 months.
Count 2 – the offender is sentenced to imprisonment for 2 years and 6 months, with a non-parole period of 1 year and 4 months’ imprisonment.
Sequence 3 (on a section 166 Certificate) – the offender is sentenced to imprisonment for 9 months.
Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), taking into account a finding of special circumstances, I impose an aggregate term of imprisonment of 3 years.
I fix a non-parole period of 1 year and 6 months’ imprisonment. The offender will be eligible for release at the expiration of the non-parole period.
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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