R v McLean

[2014] NSWDC 104

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v McLean [2014] NSWDC 104
Hearing dates:	01/04/2014
Decision date:	03 April 2014
Jurisdiction:	Criminal
Before:	S Norrish QC
Decision:	Convicted and sentenced to a term of imprisonment by way of non parole period of 1 year, 6 months with a balance of sentence of 1 year, 6 months.
Catchwords:	Criminal - sentence, recklessly inflicting grievous bodily harm, objective seriousness, early plea, 'standard non-parole period'.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Thomson and Houlton [2000] NSWCCA 309 Wilson v R [1992] HCA 31, (1992) 174 CLR 313 Muldrock v R (2011) 244 CLR 120 R v Way [2004] NSWCCA 131 Wong v The Queen (2001) 207 CLR 344
Category:	Sentence
Parties:	The Crown Tony Mack McLean - offender
Representation:	Director of Public Prosecutions - Crown Mr Hopkins - offender
File Number(s):	2013/00089360

SEntENCE

1. HIS HONOUR: Before I move to the sentencing remarks that the law requires me to make in relation to this matter, there are some remarks I wish to make which are particularly directed to the prisoner and the victim and their families and the people that support them in this Court. It is to be remembered of course that sentencing in courts is a complex exercise and it is not primarily or principally directed at extracting revenge or retribution for wrongdoing.

1. Most importantly, I make the point that when sentencing offenders where they cause the death or serious injury to other people either in the control of motor vehicles or in manslaughter matters the sentence ultimately imposed is not to be regarded as the measure of the value of the life lost or the injury done by the prisoner to a particular victim. It is also to be remembered of course that the criminal law recognises a wide range of levels of culpability.

1. The prisoner here is to be sentenced in the context that the prosecution has charged him with an offence that does not require it to prove that he had the intention to cause grievous bodily harm, that is really serious bodily harm as undoubtedly occurred in this case to the victim. Courts do not determine what charges people should face, the range of conduct that warrants the sanction of the criminal law can vary from the extreme levels such as those shown in the conduct of Ivan Milat over a period of time, viciously torturing and then murdering his victims, to cases involving people controlling motor vehicles being momentarily distracted by a mobile phone or a child in the backseat and then losing control of their motor vehicle and causing grievous bodily harm or death.

1. Of course, the Director of Public Prosecutions has the responsibility of exercising the discretion to determine what charge or charges should be brought against and accused person. This is a discretion exercised by the prosecution quite separately from the Courts and of course the Courts are reluctant to interfere with and rarely interfere with…