R v McAlister

[2021] NSWDC 541

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

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

Markarian v The Queen [2005] HCA 25

McKinnon v R [2020] NSWCCA 106

McLaren v R [2012] NSWCCA 284

Muldrock v The Queen (2011) 244 CLR 120

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] NSWCCA 247

Yun v R [2017] NSWCCA 317

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

1. 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.

2. What followed will be summarised more comprehensively below. Essentially, the offender assaulted the victim occasioning to him actual bodily harm whilst in company and recklessly wounded him. The reckless wound is a “glassing” of the victim, the offender striking the victim in the face while he held a glass in his hand.

3. The purposes of sentencing are at times overlapping, at other times conflicting. They are not ranked in order of priority. It is recognised that at times the conflicting nature of the sentencing principles pull the sentencing judge in different directions in exercise of the instinctive synthesis of the sentencing process: McHugh J in Markarian v The Queen [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120.

4. A number of questions arise in this case that highlight the tension that sometimes exists in sentencing proceedings. On the one hand, the victim suffered an attack which resulted in a scar to his face. He has suffered both physically and mentally as a result of the offender’s actions. That harm must be acknowledged.

5. What weight should be afforded to general deterrence, specific deterrence, denunciation and punishment? Does the protection of the community require that the offender serve a lengthy period of full-time imprisonment?

6. On the other hand, the offender’s subjective case reveals a background of deprivation and disadvantage. What is the relevance of the interplay between that history, the offender’s mental health issues and the development of his Alcohol Use Disorder? Does his deprived and disadvantaged background operate to reduce his moral culpability? Can his Substance Use Disorder be taken into account and to what extent, if any, as a mitigating factor?

7. In setting out the factors relevant to the objective gravity of the offences and the assessment of moral culpability, I endeavour to answer some of these questions and arrive at a proportionate sentence.

Introduction

8. Mathew McAlister will be sentenced for the following offences:

1. Count 1 – that on 27 June 2020, while in the company of Dylan Skinner, he assaulted Leopold Rivaud, thereby occasioning actual bodily harm. The offence is contrary to section 59(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 7 years’ imprisonment.

2. Count 2 – that on 27 June 2020, he recklessly wounded Leopold Rivaud. The offence is contrary to section 35(4) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 7 years’ imprisonment, with a standard non-parole period of 3 years’ imprisonment; and

3. Sequence 3 which appears on a s 166 Certificate and is a related offence of Affray. Although the offender must be sentenced in respect of sequence 3, the criminality constituting the offence of Affray significantly overlaps with the criminality relied upon to establish Count 1.

9. The offender was committed for Trial on 22 December 2020. His Trial was listed to commence on 5 July 2021 at Sydney District Court. The offender was re-arraigned on a fresh indictment on 25 June 2021, and pleaded guilty following negotiations during the Sydney Super Call Over.

10. It is common ground that the appropriate discount to reflect the utilitarian value of the plea of guilty is 25%.

11. In addition to the quantified discount, I note that the plea of guilty was entered in the grip of the COVID-19 pandemic. Jury trials were suspended just a few short days after the 25 June 2021. The offender’s acknowledgement of guilt and confirmation of his plea of guilty demonstrates his willingness to facilitate the administration of justice. Furthermore, his plea of guilty demonstrates remorse. It means that the victim does not have to go through the ordeal of giving evidence and being cross-examined.

Facts

Circumstances of the Offending

12. The circumstances giving rise to the offences are set out in the Statement of Agreed Facts that can be summarised as follows:

13. On the afternoon of 27 June 2020, at about 2:00pm, the victim, Leopold Rivaud, and his two friends, Jean Moreau and Giles Harel, attended a house party in Ultimo.

14. At the time, the offender resided in shared premises at 95 William Street, Ultimo where Mr Harel also resided.

15. At about 9:30pm, the victim and his friends attended the Glasgow Arms Hotel (‘Hotel’), which is a short walk from the shared premises where the offender and Mr Harel resided. By about 10:00pm, the offender attended the Hotel with a female friend and three or four other people, including the co-offender, Dylan Skinner. The two groups conversed without incident.

16. At approximately 11:00pm, the victim’s group was heard yelling at the offender. At 11:08pm, the offender’s female friend approached the victim and introduced herself to him and other members of his group. They continued to talk for the next 15 minutes. At 11:23pm, the offender and co-offender came over to the victim and had a short conversation with him. The victim shook Mr Skinner’s hand. At this point, the victim felt intimidated.

Count 1 (AOABH in Company) and Sequence 3 (Affray)

17. At 11:26pm, the offender punched the victim with his right fist, striking him on the chin and causing his head to jolt backwards. The offender punched the victim again multiple times. The victim and the offender then exchanged several punches.

18. Mr Skinner then attempted to pull the victim off the offender, resulting in both the offender and the victim falling to the ground. Whilst they were both on the ground, Mr Skinner threw several punches at the victim. Mr Skinner was separated from the victim by Mr Moreau and other patrons. The entire incident was captured on CCTV (Exhibit C).

19. Having watched that footage, I am satisfied that the offender instigated the violence by taking a step back and punching the victim with some force. The victim and the offender then engaged in a physical altercation until Mr Skinner pulled the victim from the offender.

20. At the time of the incident, the area was populated with patrons, many of whom were seen to be shocked and moved hurriedly away from the immediate area.

21. The victim recalls feeling pain as a result of the incident, and was observed to have had a bleeding nose.

Count 2 (Reckless Wounding)

22. At 11:27pm, the victim and his friends exited the premises onto William Henry Street. A minute later, the offender also exited the premises while holding a schooner glass filled with beer.

23. Once outside, the victim and the offender were in close proximity. The victim walked towards the offender and lunged towards him. The pair then grabbed each other by the shirt, exchanging blows. The offender swung his right arm at the victim’s face while holding the schooner glass, causing the glass to smash.

24. Mr Moreau, who was standing nearby, punched and kicked the offender, separating him and the victim. A brawl involving approximately 8 people ensued. As a result of the altercation, the victim sustained one 6cm deep laceration to the left of his forehead and three other superficial lacerations to his forehead.

25. The incident was captured on CCTV footage (Exhibit B). The footage supports the contents of the Statement of Agreed Facts that on this occasion it was the victim who instigated the violence by lunging at the offender.

26. Police attended the scene and located the victim near Royal Prince Alfred Hospital where he was awaiting treatment. He initially told police that he had a scooter accident. When asked later by police why he lied to them, he said he did not know.

27. On 28 June 2020, police executed a search warrant at 95 William Henry Street. Police arrested the offender and co-offender.

28. At the time of the offence, all parties had been drinking alcohol through the course of the afternoon and continued to drink alcohol while at the Hotel. The victim told police he had consumed seven drinks while at the house party, and couldn’t remember how many drinks he then had at the Hotel. The offender told staff at the Emergency Department that he had approximately 15 standard drinks that evening.

Objective Seriousness

Legal Principles relating to Assessment of Objective Seriousness

29. The assessment of the objective seriousness of an offence is a critical component of the sentencing process. What then informs the assessment of objective seriousness? Is the assessment of objective seriousness informed by objective factors only or can I take into account matters personal to the offender? This is a vexed question.

30. In Muldrock v The Queen (2011) 244 CLR 120, the High Court was dealing with an offence that carried a standard non-parole period. The appellant was found to be significantly intellectually disabled. The High Court considered the application of s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as it existed at the relevant time. The standard non-parole period was said to represent the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that are relevant to sentencing in the individual case.

31. Importantly, the High Court stated:

“the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending”.

32. Amendments were made to ss 54A and s 54B of the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole) Act 2013 (NSW). In Tepania v R [2018] NSWCCA 247, the Court referred to the amendments made in 2013 as clarifying that “limiting the considerations of objective factors applies only when giving meaning to the hypothetical “middle of the range” offence described in s 54A”.

33. In Yun v R [2017] NSWCCA 317, the Court rejected the submission that Muldrock limits the range of relevant factors to the actus reus and the consequences of the offence, stating that the physical acts and consequences of some standard non-parole period offences, by their very nature, do not demonstrate much “scope and variety”. The intention of an offender has always been a significant factor in assessment of objective seriousness and the inclusion of that factor necessarily enlarges the range within which a given offence sits: at [38].

34. The Court held that the “nature of the offending” is sufficiently broad to include the mens rea that accompanied the commission of the offence because it is an integral part of the offender’s conduct constituting the offence. Factors such as duress or provocation are not “characteristics of the offender”, but operate to partially excuse or justify the commission of the offence and, to that extent, are within “the nature of the offending”.

35. The question as to whether moral culpability informs an assessment of objective seriousness (or whether it is a separate and discrete consideration) is also a vexed question. There has been tension in the authorities on this point. However, the preponderance of authority is to the effect that where matters personal to the offender are causally related to the commission of the offence, they may inform the gravity of the offending by reason of the offenders moral culpability: McLaren v R [2012] NSWCCA 284; Subramaniam V R [2013] NSWCCA 159.

36. The Court of Criminal Appeal, more recently, has reaffirmed the position that an assessment of an offender’s moral culpability for the offending conduct is a feature of the objective seriousness of the conduct, which is fundamental to the sentencing process: Fisher v R [2021] NSWCCA 91 at [70].

37. Moral culpability is not wholly divorced from an assessment of objective seriousness. The two concepts overlap: Kelley v R [2021] NSWCCA 173 at [39]. Indeed, in Rossall v R [2021] NSWCCA 200, Garling J ( Bathurst CJ and Rothman J agreeing) said at [100]:

“authority of this Court requires a consideration of the moral culpability of an offender including when it is reduced by factors such as his upbringing to be taken into account when assessing the objective seriousness of an offence”

Assessment of Objective Seriousness

38. It is with these principles in mind that I turn to consider the objective seriousness of the offences to which the offender has pleaded guilty. Notwithstanding the remarks of his Honour Garling J in Rossall, I intend to assess any reduction in the moral culpability of the offender resulting from his deprived and disadvantaged background, as a separate matter, after I have summarised his subjective case.

39. An issue arises as to whether the offender’s mental health, including Substance Use Disorder, is causally connected to the commission of the offences, such as to reduce his moral culpability.

40. Ms McGee, appearing for the offender, submits that where the state of a person’s mind contributes to the commission of the offence in a material way, their moral culpability may be reduced, and so too the consequent need to denounce the crime may be reduced because the offender is not an appropriate medium for making an example to others. The offender’s mental state, including any mental illness and any compromised capacity for sound judgment at the time of the offending, is relevant to the assessment of objective seriousness and may mean that a custodial sentence may weigh more heavily on the person.

41. Further, less weight may be given to general deterrence even if the offender knew that what he/she was doing was wrong. These submissions are consistent with authority and are not controversial.

42. Ms McGee goes further to submit that where there is a causal link between addiction and offending, the fact that an addiction affects the offender’s cognitive facilities or emotional restraints, capacity to make reasoned or ordered judgments, awareness of the likely consequences of his or her conduct, or appreciation of the wrongfulness of the conduct, can reduce the seriousness of the offence.

43. In this case, Forensic Psychologist, Clair Baker, concluded that the offender meets the diagnostic criteria for Alcohol Use Disorder and opines (at [66]):

“Mr McAlister’s offending behaviour appears to be correlated to some degree with his Alcohol Use Disorder, but it is also strongly linked to his inability to manage elevated emotional states, his tendency towards guilt and feelings of responsibility for others well-being [dating back to his deprived childhood] which in this instance appears to have been triggered by his flatmate’s suicide attempt earlier that day. As such it is considered that the current offence has been influenced by his alcohol use and elevated emotional state at the time of offending, and may well have been exacerbated by the emotional lability he was experiencing from the newly prescribed antidepressant medication”.

44. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) states:

“in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor”.

45. While this prohibition may seem clear on its face, where a substance abuse disorder is a product of deprivation and disadvantage (here commencing in childhood), the line to be drawn between a diagnosis of Substance Use Disorder on the one hand and self-induced intoxication at the time of the offence, on the other, is a more complicated exercise.

46. Clearly, I cannot take into account the offender’s self-induced intoxication at the time of the offence as a mitigating factor. While I am entitled to refer to the offender’s intoxication as providing an explanation for the context in which the offending occurred, it is not open to me to take the next step of ameliorating or reducing the offender’s culpability for the offending because of the effects of alcohol, irrespective of whether those effects were disinhibiting, or whether they operated to compromise the offender’s judgment or assessment of the surrounding circumstances: Fisher v R at [71].

47. The offender reported that in the weeks leading up to the current offences he had been experiencing considerable anxiety, which he believed had been exacerbated by a new antidepressant that had been prescribed. He had discussed this with his Doctor, however, was advised to give the medication more time to work. That history is corroborated in the letter from Dr Lai (Exhibit 2).

48. Ms Baker opines that the offending behaviour:

“….is also strongly linked to his inability to manage elevated emotional states, his tendency towards guilt and feelings of responsibility for others… and may well have been exacerbated by the emotional lability he was experiencing from the newly prescribed antidepressant medication”.

49. It is only to this extent that I take into account the offender’s mental state at the time that he committed the offences to reduce his moral culpability, thereby informing the assessment of objective seriousness.

50. I have also had regard to the following objective factors in determining the objective seriousness of each of the offences:

AOABH in Company

51. The offender instigated the violence by punching the victim to the chin causing his head to jolt backwards. The CCTV footage depicts the force with which the blow was struck. The assault was committed in the company of Mr Skinner.

52. The victim did not provoke this assault. He sustained a bleeding nose, an injury that falls towards the bottom of the range of objective seriousness for this offence category. I am satisfied that the offender’s conduct was impulsive, absent any planning organisation or sophistication.

53. I am satisfied that this offence falls below the middle of the range of objective seriousness, but not at the bottom of the range, given the wholly unprovoked nature of the assault.

Affray

54. The facts constituting the offence of Affray are essentially the same as those constituting Count 1. The assault occurred in the public bar in front of a group of bystanders who were present at the hotel. I am satisfied that this offence also falls below the middle of the range of objective seriousness and towards the lower end of the range.

Reckless Wounding

55. The CCTV footage confirms that the offender walked out of the hotel about one minute after the victim had exited the hotel with his friend. The offender did have possession of a full glass of beer. However, the material does not establish that he armed himself with the glass with the intention of using it as a weapon to strike the victim. Indeed, I am not satisfied that when the offender left the hotel, he did so intentionally to follow the victim.

56. It is agreed that the victim was the instigator of the violence immediately preceding the reckless wounding. He lunged at the offender. The pair then grabbed each other by the shirt exchanging blows. It was during this altercation that the offender swung his right arm at the victim’s face while holding the schooner glass, causing the injury.

57. The fact that the offender was in possession of a glass which he used to strike the victim, is an aggravating factor that I have taken into account. The weight to be afforded this aggravating factor is, however, modest because I am not satisfied that the offender deliberately armed himself to use the glass as a weapon.

58. There was a degree of provocation in light of the fact that the victim lunged at the offender, instigating the violence immediately preceding the commission of the reckless wounding offence. However, the degree of provocation is not significant. The victim’s actions in instigating this violence followed a short time after he was punched with some force in the face by the offender and upon seeing the offender on the same pavement and walking in his direction.

59. The glass smashed on the victim’s face, causing a 6cm long laceration to his forehead, as well as 3 superficial lacerations to the same area. Fortunately, the injury was not life-threatening, nor did it result in permanent impairment, although it has resulted in a permanent scar. The injury is not at the higher end of the range for this offence category.

60. In making that determination, I do not underestimate the impact of this offence on the victim. Whilst the degree of harm is not such as to constitute an aggravating factor, I acknowledge the contents of the victim impact statement including the victim’s self-consciousness given the scar on his face and his fear of going out. Notwithstanding the fact that he lunged at the offender, an act that immediately preceded the wounding, the victim did not deserve the injury he sustained and will be constantly reminded of it when he looks into the mirror which no doubt continue to cause him to stress.

61. Having taken into account the objective factors and the offender’s state of mind, I am satisfied that the offence of reckless wounding falls below the middle of the range of objective seriousness.

62. The offender was subject to parole at the time he committed the offences, a matter I have taken into account as an aggravating factor. To be clear, the fact that he committed these offences while subject to conditional liberty does not operate to increase the objective seriousness of the offences themselves. It is, however, relevant to the weight to be afforded specific deterrence, denunciation and the protection of the community.

Standard Non-Parole Period

63. The offence of reckless wounding carries a standard non-parole period of 3 years’ imprisonment. I remind myself that the standard non-parole period is not the starting point or the endpoint at arriving at an appropriate sentence. Instead, I must have regard to all of the factors relevant to sentencing. In doing so, I have been mindful of the two legislative guideposts; the maximum penalty; and the standard non-parole period.

64. I intend to depart from the standard non-parole period because I find that the offence falls below the middle of the range of objective seriousness and having regard to the offender’s plea of guilty. Furthermore, I have taken into account the offender’s compelling subjective case. I turn now to summarise and consider the offender’s subjective case.

Subjective Circumstances

Background

65. The offender is 35 years’ old. He was born in Sydney and is the only child born to his parents’ union. He has four younger half-siblings, all of whom have been born to his mother from subsequent relationships. The offender maintains a positive relationship with all of his half-siblings.

66. He experienced a turbulent childhood. He did not meet his biological father until he was eight years’ old. His mother had many relationships with different men throughout his childhood, most of those relationships involved domestic violence.

67. As a result of the violence, the offender and his mother often moved into refuges or to different towns with little notice. His step-father, Tony, was a very violent man. He regularly assaulted the offender and the offender’s mother. On one occasion, when the offender, his mother and half-siblings were staying at a refuge, Tony came to the refuge and damaged his mother’s car. The offender’s mother went outside and stabbed Tony. She was arrested and his half-siblings were taken into the care of the Minister.

68. The offender was left behind and remained homeless for a few days before his grandmother found him and took him back to her home at Caves Beach. He had a good relationship with his maternal grandmother who provided him with the care and nurturing that was absent in his earlier life.

69. The offender’s mother was a heroin addict from the time of his birth until approximately 10 years ago. He described himself as a “heroin baby” and recalled experiencing emotional and physical abuse at his mother’s hands during those days of addiction. The offender reported that his mother was mentally abusive and he has no positive memories of their relationship during his childhood years.

70. Notwithstanding that neglect and abuse, the offender felt sorry for his mother. Looking back, he thinks that she made him feel guilty, like it was his fault for the way her life turned out.

71. When he was 13 years’ of age, his mother was arrested and incarcerated for an aggravated armed robbery. As a result, the offender went to live full-time with his father in Lennox Head, NSW. This was a lifeline in many respects. The offender enjoyed a strong and positive relationship with his father.

72. Prior to moving in with his father, the offender attended many different primary schools due to his mother’s transient lifestyle. He lived with his father during his high school years from Year 7 to Year 11. It was in Year 11 that he was involved in a car accident where, as a passenger, he was trapped in the car which was submerged underwater.

73. He was not able to free himself. It took some minutes before his friends successfully freed him from the wreck and administered CPR. He reported being in a coma for two weeks following the accident. He was advised to attend rehabilitation for his brain injury but did not do so and returned to school approximately a month after the accident.

74. He found that he was unable to process incoming information effectively. After leaving school, he was placed on a Disability Support Pension due to his head injury.

75. As a result of tension in the relationship between the offender and the offender’s father’s girlfriend, the offender eventually moved with his girlfriend to Sydney in order to find work. His father visited him on one occasion and they spent the weekend together. The offender reported very fond memories of that weekend.

76. Tragically, however, when his father returned to Lennox Head, he committed suicide. The offender reported feeling angry at his father for a long time, causing him to significantly increase his alcohol consumption.

77. The offender maintained “on-and-off contact” with his mother. Although she gave up heroin 10 years ago, she started consuming alcohol regularly about four years ago. The offender finds it difficult to be around her and describes her as “cruel”.

78. After leaving school, the offender relied predominantly on his Disability Support Pension for income. He worked at multiple places in the hospitality industry. Up until his arrest, the offender was working at Blackheath Golf Club. He intends to return to this job following his release from custody.

Alcohol Use Disorder

79. The offender first consumed alcohol when he was 15 years old. His alcohol use had increased considerably following his father’s suicide. He worked at the Mona Vale Hotel Bottle Shop which gave him unrestricted access to alcohol. By the time he was 25 years’ old, he reported drinking daily. He turned to alcohol in order to manage his anxiety.

80. The offender first started smoking marijuana when he was 14 years’ old. He continued to smoke cannabis regularly since that time. He reported using ecstasy, acid and speed when he was 16 years’ old. He then transitioned to using ice frequently following his car accident. He explained that he experienced immediate relief from the symptoms of his brain injury when he used ice. He continued to use illicit substances “every now and then”.

81. He is diagnosed as suffering from Alcohol Use Disorder. Ms Baker notes the offender’s report of a hypoxic Acquired Brain Injury at the age of 16 and concludes that this would be expected to have a lasting impact on his memory function. She refers to research pointing to an increased likelihood of alcohol abuse in cases where brain injuries have occurred during childhood and adolescence. ^[1]

    1. 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.

82. In addition to the history obtained from the offender, there is some reference to an Acquired Brain Injury (drowning) in the letters of Dr Lai, dated 12 June 2020 and 7 July 2020. However, I do not have an expert report confirming the diagnosis or outlining the impairments suffered by the offender as a result of any such brain injury. In the absence of such material, the weight to be afforded to such a diagnosis, and the relationship between such a condition and later alcohol abuse, is limited.

Relationships

83. The offender’s first significant relationship was with his high school girlfriend which began when he was 16 and ended when he was 22.

84. When the offender was 25 years’ of age, he entered a relationship with his ex-partner, Annette. She fell pregnant a few years later with the offender’s first child, Aprille. Annette also had a child from an earlier relationship. The children were taken into care because their parents were transient and sometimes homeless.

85. Annette fell pregnant again. As the pregnancy progressed, the baby was diagnosed with serious abnormalities. After they were advised that their son would not survive long after his birth, the offender stated that he “went off the rails” and “started drinking heavily”. The pair decided to go ahead with the pregnancy hoping that the doctors were wrong.

86. In the meantime, the offender was arrested and taken into custody for 15 months following an assault in November 2014. His son, Kingston, was born and died almost four months later. The offender was in gaol during this time and did not get a chance to spend time with his son.

87. It was at the funeral that he first got to hold his dead son, an experience that was completely overwhelming. The offender blames himself for this tragedy, believing that he should have persuaded Anette to have an abortion.

Mental Health

88. The offender reported seeing a number of psychologists throughout his life. He commenced taking antidepressants in 2015 when his son passed away and experienced chronic difficulty with Social Anxiety. In July 2020, the offender began visiting Dr Daniel Lai at Glebe Medical Centre. During these visits, he reported experiencing symptoms of anxiety, including stress, a lack of sleep, and a lack of appetite. Ms Olivia Garnett, Psychologist, diagnosed the offender with Extremely Severe Stress, Extremely Severe Anxiety and Moderate Depression.

Relevance of the Background of Deprivation and Disadvantage

89. What then is the relevance of this background of deprivation and disadvantage? It is apt to answer that question by repeating the remark of her Honour Simpson JA in R v Millwood [2012] NSWCCA 2 at [69]:

“I am not prepared to accept that an offender who has had the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions”.

90. In Bugmy v The Queen (2013) 249 CLR 571 at [40], the Court said:

“The circumstances that an offender has been raised in the community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way”.

91. In the present case, the offender was exposed to domestic and family violence at a young age at the hands of his stepfather and his mother’s partners. He was born to a mother addicted to heroin. His childhood was unstable and transient. He did not have the benefit of the supervision, support and guidance enjoyed by other children in the community.

92. I note that the offender experienced a period of stability from about the age of 13 to 17 when he resided with his father. Cruelly, that period of stability ended in further trauma when his father committed suicide. That trauma was compounded during his adulthood when his baby son died during a time when he was incarcerated, not having had the opportunity to see him while living. In addition to a childhood of deprivation and disadvantage, the offender has also suffered significant trauma in adult hood.

93. This background of deprivation and disadvantage does operate to reduce the offender’s moral culpability. Acknowledging that there is a line of authority that has developed in the NSW Court of Criminal Appeal where the application of the “Bugmy principles” has been curtailed in the absence of an established causal link between the disadvantage and the offending conduct, the High Court in Bugmy did not require a causal link to be established. Indeed, the High Court spoke of giving full weight to an offender’s disadvantaged background in every sentencing decision (at [44]).

94. The impact of disadvantage is complex, multilayered, non-linear and not easily diagnosed or measured: DPP v Herrmann [2021] VSCA 160 (at [45]-[46]). What is required, in determining whether a background of disadvantage operates to reduce moral culpability, is an assessment of the effect of such background on the offender and, in particular, its “ability to compromise the person’s capacity to mature and learn from experience”. How else is individualised justice to be achieved?

95. In the present case, I find that the offender has experienced a background of disadvantage and deprivation in addition to a number of significant traumas in adulthood. I acknowledge that such a background of disadvantage may leave its mark on a person throughout life, including by compromising his/her capacity to mature and learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of an appropriate sentence. It operates, in this case, to reduce his moral culpability.

In Custody

96. Whilst in custody, the offender has completed several courses, including the Salvation Army’s Positive Lifestyles Program; Crossroad’s Who Are You Program; Biblical Correspondence Program; and Great Truths of the Bible.

97. He has attended Narcotics Anonymous on 11 different occasions. He is described as having a “positive attitude towards counselling” and “appears to be actively engaged in developing healthy ways to cope with Drug and Alcohol addiction”. Unfortunately, the offender has not been able to attend rehabilitative programs for approximately 2 months given the COVID-19 lockdown in the gaols (a matter I will discuss more fully below).

98. I am satisfied that the offender has maintained abstinence whilst in custody and is genuinely motivated to remain abstinent upon his release from custody. The real question is as to whether he will be able to resist temptation upon his release to the community.

99. The offender has a record of previous convictions which includes offences of common assault; assault police; assault occasioning actual bodily harm; and affray. He has been dealt with by way of terms of imprisonment in the past.

100. His record of previous convictions disentitles him from the leniency that would be afforded a first-time offender or a person with a relatively minor record. I do not treat it as an aggravating factor. However, his record and the fact that he committed these offences while subject to parole are relevant considerations in assessing the weight to be afforded to specific deterrence.

Remorse

101. The Crown accepts that the utilitarian value of the plea is one of 25%. The offender has not given sworn evidence before me, but I am prepared to find that in addition to the utilitarian value of the plea, the offender has facilitated the administration of justice and his pleas of guilty reflect some remorse.

Prospects of Rehabilitation

102. The offender committed these offences while subject to parole. He has a history of previous convictions and a long standing alcohol abuse disorder.

103. The breach of parole reports state that his response to supervision in the past has been mixed. He had relocated on a number of occasions which hindered the continuity of his treatment. On the other hand, he had attended his general practitioner on some four occasions focusing on issues of anxiety, emotional regulation and alcohol dependence. The offender had been prescribed antidepressants and referred to a psychologist and psychiatrist for mental health intervention. His parole was ultimately revoked because he continued to offend in a violent manner while under the influence of alcohol.

104. Prior to his incarceration, the offender attended upon his General Practitioner and was referred to Dr Jacobson. The offender has also been proactive in custody by attending and completing courses available to him.

105. I am guarded about his prospects of rehabilitation given his history of offending and long-standing alcohol use disorder. This is not a case however where it can be said that there is no prospects of rehabilitation. It is not surprising that an individual with the degree of deprivation, disadvantage and trauma experienced in his lifetime, will require a lengthy and intensive treatment in order to overcome his alcohol use disorder and reduce the risk of recidivism. Although guarded, I am satisfied that he has some prospects of rehabilitation if he remains abstinent and attends treatment for his mental health issues.

Purposes of Sentencing

106. Having taken into account the offender’s subjective case and in particular the reduction in moral culpability resulting from his background of deprivation and disadvantage, I turn to consider some of the relevant countervailing factors. I have had regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

107. Denunciation and punishment remain relevant and weighty considerations given the objective gravity of the offences. This was alcohol fuelled violence committed in public, the initial assault being wholly unprovoked. General deterrence and specific deterrence are also relevant considerations.

108. However, given the offender’s mental health issues and his background of deprivation and disadvantage, the weight to be afforded to general deterrence is moderated.

109. I have also had regard to the protection of the community. The offender has a history of alcohol related offending. He was heavily intoxicated on this occasion. There is a real risk of future violence if he continues to abuse alcohol. On one hand, it could be said that incapacitation serves the purpose of community protection.

110. However, it seems to me that a more meaningful way to achieve community protection in this case is to ensure that this offender receives long-term intensive treatment to address his alcohol use disorder and, importantly, the underlying mental health issues that give rise to that disorder. Rehabilitation, and the protection of the community that successful rehabilitation affords, is also a relevant and weighty consideration.

111. The offender must be held to account for his actions and must be punished for the violence perpetrated on the victim. Having considered all of the relevant factors, I am satisfied that the section 5 threshold is crossed and that the only appropriate penalty is one of full-time imprisonment.

Parity

112. The principle of parity operates to avoid an offender having a justifiable sense of grievance. That said, where there are relevant points of distinction between the co-offenders and the present offenders, it is necessary to take those differences into account in determining the extent to which the principle of parity applies.

113. Dylan Skinner was sentenced on 25 March 2021 to an aggregate term of 30 months’ imprisonment to be served by way of an Intensive Corrections Order. In respect of the present offence, following the application of a 25% discount to reflect the utilitarian value of the plea, the recorded indicative sentence was one of 18 months’ imprisonment. Mr Skinner was also subject to conditional liberty at the time he committed the offence, being on parole for unrelated matters.

114. I do not have the Remarks on Sentence relating to the sentence proceedings of Mr Skinner. The parties are content to proceed in the absence of those remarks. Having watched the CCTV footage, I am satisfied that the present offender played a more significant role in the offence of assault occasioning actual bodily harm because he instigated the violence by punching the victim to the face.

115. In each case, a discount of 25% is appropriate to reflect the utilitarian value of the plea. In each case, the offender was subject to conditional liberty. I have no details as to Mr Skinner’s subjective case.

116. I am satisfied that the indicative sentence for the offence of assault occasioning actual bodily harm will be somewhat less than the indicative sentence recorded in the case of Mr Skinner. Notwithstanding the fact that the present offender played a more significant role, his subjective case is compelling and his moral culpability reduced for the reasons set out above.

Special Circumstances and the COVID-19 Pandemic and the Impact on Prisoners

117. I am urged to make a finding of special circumstances and significantly adjust the statutory ratio to take into account the principle of totality; the recognised hardship to prisoners caused by COVID-19 restrictions in the custodial setting; and, an extended period of oversight of his engagement in relevant therapy and effective support systems.

118. The offender relies upon the report of Dr Andrew Ellis (Exhibit 5), which sets out the impact on the mental health of prisoners given the restrictions in place as a result of the COVID-19 pandemic. There are limitations on movement of prisoners and access to training, education and therapeutic programs. In-person family visits are suspended. In-person legal visits are suspended.

119. These conditions may result in the exacerbation of existing mental health issues and reduced access to treatment, which is likely to lead to a worse prognosis.

120. The courts have acknowledged that the pandemic has resulted in increased onerous custodial conditions which is relevant on sentence McKinnon v R [2020] NSWCCA 106; Scott v R [2020] NSWCCA 81.

121. In making a finding of special circumstances warranting a variation of the statutory ratio, I take into account the onerous conditions in custody due to the suspension of visits, isolation measures, impact on well-being, and interruption of rehabilitation and work programs. In addition, I am satisfied that the offender will require an extended period on supervision to receive treatment for his mental health issues including, but not limited to, his Alcohol Use Disorder.

Totality, Concurrency and Accumulation

122. The offender was arrested, charged and bailed on 28 June 2020. He was returned to custody on 29 July 2020 when he committed further unrelated offences of resist police, common assault, malicious damage and possession of prohibited drugs. His bail in respect of the present offences was revoked.

123. In addition to being in custody bail refused on the present offences, he served the balance of parole between 29 July and 28 October 2020. The offender also served a non-parole period of 4 months’ imprisonment in respect of unrelated offences and a further sentence of 6 months’ imprisonment for an unrelated offence of take and drive conveyance. The non-parole periods in respect of the unrelated offences expired on 27 May 2021. He has, therefore, been in custody solely referable to the offences before me since that date.

124. An issue arose during the proceedings as to whether the offender’s parole was revoked as a result of the commission of the present offences. The Breach Report, dated 3 August 2020, indicates that his parole was ultimately revoked given the fresh offences committed on 29 July 2020.

125. A further Breach Report, dated 3 July 2020, identifies that the offender was arrested and charged on 28 June 2020 with the present offences. The report recommended that a warning be issued. The Crown submits that there is no evidence available from the Revocation of Parole Report, dated 3 August 2020, that the current offences have informed the State Parole Authority’s decision to revoke parole. It is, therefore, submitted that I would not be satisfied that the current offences formed part of the reason for the revocation of parole.

126. Ms MGee submits that the recommendation that parole be revoked was:

“because Mr McAlister has continued to offend in a violent manner while under the influence of alcohol. This is a factor consistent throughout his offending history and indicates his inability to address his criminality needs in the community”.

127. Although the report does not specifically state that the parole was revoked as a result of the commission of the present offences, clearly the decision was informed by the accumulation of breaches constituted by violent offending while under the influence of alcohol.

128. A question arises as to whether I should backdate the present sentence so that it is partially concurrent with the sentence he was serving for the unrelated offences, including the revocation of parole.

129. The offender has been bail refused in respect of the present offences since he was returned to custody in relation to the unrelated offences. Although the breach reports do not specifically attribute the revocation of parole to the commission of the present offences, clearly the decision to revoke parole was informed by an accumulation of violent offending committed under the effects of alcohol.

130. Taking into account the principle of totality, I am satisfied that the sentence I impose will be partially concurrent with the period in custody for the unrelated matters.

131. The commencement date will be to 27 January 2021. For completeness, while there will be a degree of accumulation reflected in the aggregate sentence between the indicative sentences for the offences of assault occasioning actual bodily harm in company and reckless wounding, the facts relating to the offence of Affray are essentially the same as the facts relating to the assault occasioning actual bodily harm in company. There will be no degree of accumulation in respect of these offences.

Comparative Cases

132. MFI 2 includes a Table of comparable cases relied upon by the offender. The schedule includes four cases. For completeness, I will refer to the cases that have been provided.

133. Osborne v R [2015] NSWCCA 260 involved a “glassing” at a bar following a verbal argument. The applicant was sentenced to 3 years’ imprisonment, with a non-parole period of 2 years’ imprisonment. He had no prior criminal history and ongoing employment. He was assessed as a low risk of reoffending.

134. However, unlike the present case, a finding was made that the use of two glasses aggravated the seriousness of the offence. The applicant was sentenced on the basis that he intentionally struck the victim in the face and neck with the two schooner glasses knowing that hurt would be occasioned, a factor that marked the offence as one involving a “very high degree of recklessness”.

135. In Kliendienst v R [2020] NSWCCA 98, the Applicant was sentenced to 3 years’ imprisonment, with a non-parole period of 2 years’ imprisonment (the indicative sentence for the offence of reckless wounding). He had a childhood of deprivation and disadvantage and a past history of violent offending. The Applicant was found to be remorseful and was assessed as a medium to low risk of reoffending.

136. However, in that case, the offending was found to be at the mid-level of objective seriousness, noting a high degree of violence and ferocity involved and the fact that it was an unprovoked attack where the injuries sustained were significant.

137. In R v Merillo [2017] NSWCCA 173, the Crown appealed against the manifest inadequacy of sentence was upheld. At first instance, the offender was sentenced to an Intensive Corrections Order for 18 months. The Applicant was resentenced to a term of full-time custody of 4 years’, with a non-parole period of 2 years and 6 months’ imprisonment.

138. In that case, the maximum penalty was 10 years’ imprisonment, with a standard non-parole period of 4 years’ imprisonment. The Court found that the offence was an unprovoked attack with very serious injury and permanent impairment.

139. The last case on the schedule is Craft v R [2021] NSWCCA 131. Following the application of 25% discount to reflect utilitarian value of the plea, and taking into account a childhood of deprivation which warranted a reduction in moral culpability, the applicant was sentenced to 3 years’ imprisonment, with a non-parole period of 1 year 9 months’ imprisonment. In that case, the Applicant had a criminal history involving violence and aggression and was assessed as a medium to high risk of reoffending.

140. There are points of distinction between these cases and the present case. While I am assisted by statements of principle enunciated in these cases, they do not provide a discernible pattern of sentencing.

Sentence

141. Accordingly, the offender is convicted in respect of each offence. Before imposing the aggregate term of imprisonment, I am obliged to record the indicative sentences. In doing so, I have taken into account in respect of each offence a discount of 25% to reflect the utilitarian value of the plea. The indicative sentences are as follows:

Count 1	14 months’ imprisonment
Count 2	2 years and 6 months’ imprisonment, with a non-parole period of 1 year and 4 months’ imprisonment
Sequence 3	9 months’ imprisonment

142. 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, commencing on 27 January 2021 and expiring on 26 February 2024.

143. I fix a non-parole period of 1 year and 6 months’ imprisonment, commencing on 27 January 2021 and expiring on 26 July 2022. The offender will be eligible for release at the expiration of the non-parole period.

Endnote

Decision last updated: 12 October 2021