Regina v Alan Matthew McArdle - [2017] NSWDC 239

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Regina v Alan Matthew McArdle [2017] NSWDC 239
Hearing dates: 11 August 2017
Date of orders: 01 September 2017
Decision date: 01 September 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted
2 The offender is sentenced to 2 years imprisonment. That sentence is suspended and the offender is to be released from custody on condition that he enters into a bond to be of good behaviour under section 12 Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. The conditions are that the offender:
(1) Is to be of good behaviour and appear before the Court of called on to do so;
(2) Is to inform the Registrar of the District Court at the Downing Centre of any change of residential address;
(3) accept the supervision and to obey the reasonable directions of the Community Corrections Service with regard to alcohol and other drug counselling and for treatment of his mental condition. That supervision is to continue for the length of the bond or for such shorter time as the Community Corrections Service deems necessary.

Catchwords: CRIINAL LAW – offence - plea of guilty – sexual intercourse without consent
SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – youth of offender – prospects of rehabilitation – circumstances of the offence – available sentencing options – expression of guilt – exceptional case
Legislation Cited: Crimes Act 1900 s.61I
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 5, 66, 76. 12, 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m)
Cases Cited: R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Palijan v R [2010] NSWCCA 142
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48 and
R v Lawrence [2005] NSWCCA 91
Dinsdale v R (2000) 202 CLR 321
R v Percy [1975] Tas SR 62
Wood v Samuels (1974) 8 SASR 465
R v Barlow [2008] NSWCCA 253
R v Zamagias [2002] NSWCCA 17
Bullock v R [2016] NSWCCA 131
R v May [1999] NSWCCA 40
Muldrock v R (2011) 244 CLR 120
Greenwodd v R [2014] NSWCCA 64
Sabapathy v R [2008] NSWCCA 82
Category: Sentence
Parties: Regina (The Crown)
Alan Mathew McArdle (Offender)
Representation:
Counsel:
Mr M Gelbert (Offender)
Solicitors:
C Hyland, Solicitor for Public Prosecutions (The Crown)
Crawford & Duncan Lawyers (Offender)

File Number(s): 2016/00210348
Publication restriction: None

sentence

Alan Matthew McArdle (the offender) appears for sentence after pleading guilty on the Local Court to one count of sexual intercourse without consent contrary to section 61I Crimes Act 1900.
The maximum penalty for the offence is a term of imprisonment of 14 years and parliament has prescribed a standard non-parole period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWDC 239
Decision Date: 01 September 2017

CaseChat Overview and Summary

Alan Matthew McArdle was before the court on a charge of sexual intercourse without consent. The defendant entered a plea of guilty. The case was heard and determined in the District Court of New South Wales. The primary issue before the court was the appropriate sentence to be imposed on the defendant given his guilty plea to the charge.

The court was required to consider various sentencing principles, including the circumstances of the offence, the defendant's remorse and prospects of rehabilitation, and the objectives of sentencing such as deterrence and protection of the community. The court had to weigh both mitigating and aggravating factors. Mitigating factors included the defendant's early guilty plea, his remorse, and the impact of the offence on his personal life. Aggravating factors included the serious nature of the offence and the need for specific and general deterrence.

After considering the totality of the circumstances and the objectives of sentencing, the court decided that the most appropriate sentence was a suspended imprisonment term of two years. The defendant was to be released on condition that he enter into a bond to be of good behaviour for two years and comply with specific conditions, including supervision and treatment for alcohol, drugs, and mental health issues. This sentence balanced the need for punishment, deterrence, and the defendant's prospects of rehabilitation.

Orders

Orders of the court

1 The offender is convicted

2 The offender is sentenced to 2 years imprisonment. That sentence is suspended and the offender is to be released from custody on condition that he enters into a bond to be of good behaviour under section 12 Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. The conditions are that the offender:

(1) Is to be of good behaviour and appear before the Court of called on to do so;

(2) Is to inform the Registrar of the District Court at the Downing Centre of any change of residential address;

(3) accept the supervision and to obey the reasonable directions of the Community Corrections Service with regard to alcohol and other drug counselling and for treatment of his mental condition. That supervision is to continue for the length of the bond or for such shorter time as the Community Corrections Service deems necessary.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Regina v Alan Matthew McArdle [2017] NSWDC 239
Hearing dates:	11 August 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted 2 The offender is sentenced to 2 years imprisonment. That sentence is suspended and the offender is to be released from custody on condition that he enters into a bond to be of good behaviour under section 12 Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. The conditions are that the offender: (1) Is to be of good behaviour and appear before the Court of called on to do so; (2) Is to inform the Registrar of the District Court at the Downing Centre of any change of residential address; (3) accept the supervision and to obey the reasonable directions of the Community Corrections Service with regard to alcohol and other drug counselling and for treatment of his mental condition. That supervision is to continue for the length of the bond or for such shorter time as the Community Corrections Service deems necessary.
Catchwords:	CRIINAL LAW – offence - plea of guilty – sexual intercourse without consent SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – youth of offender – prospects of rehabilitation – circumstances of the offence – available sentencing options – expression of guilt – exceptional case
Legislation Cited:	Crimes Act 1900 s.61I Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 5, 66, 76. 12, 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m)
Cases Cited:	R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91 Dinsdale v R (2000) 202 CLR 321 R v Percy [1975] Tas SR 62 Wood v Samuels (1974) 8 SASR 465 R v Barlow [2008] NSWCCA 253 R v Zamagias [2002] NSWCCA 17 Bullock v R [2016] NSWCCA 131 R v May [1999] NSWCCA 40 Muldrock v R (2011) 244 CLR 120 Greenwodd v R [2014] NSWCCA 64 Sabapathy v R [2008] NSWCCA 82
Category:	Sentence
Parties:	Regina (The Crown) Alan Mathew McArdle (Offender)
Representation:	Counsel: Mr M Gelbert (Offender) Solicitors: C Hyland, Solicitor for Public Prosecutions (The Crown) Crawford & Duncan Lawyers (Offender)
File Number(s):	2016/00210348
Publication restriction:	None