R v McAlister [2021] NSWDC 541

R v McAlister [2021] NSWDC 541

The offences warranted full-time imprisonment because they involved alcohol-fuelled public violence, including an unprovoked assault and a glassing that caused permanent scarring, while the offender was on parole. However, each offence fell below the middle of the range of objective seriousness; the offender's deprived and traumatic background reduced moral culpability; his relevant mental state was taken into account only to the extent not prohibited by s 21A(5AA); the guilty pleas attracted a 25% discount; and special circumstances, including COVID-19 custodial hardship and the need for treatment and supervision, justified an aggregate sentence of 3 years with a non-parole period of 1...

Jurisdiction
Australia
Judgment Date
29 September 2021
Procedural Posture
Criminal Sentencing / Sentence Following Pleas of Guilty
Outcome
The offender was convicted of each offence and sentenced to an aggregate term of imprisonment of 3 years with a non-parole period of 1 year and 6 months.
Legal Topics
['reckless Wounding' 'assault Occasioning Actual Bodily Harm in Company' 'affray' 'childhood Deprivation and Disadvantage' 'alcohol Use Disorder' 'self Induced Intoxication' 'moral Culpability' 'standard Non Parole Period' 'special Circumstances' 'covid 19 Custodial Conditions' 'aggregate Sentence']
['criminal Law' 'sentencing'] ['reckless Wounding' 'assault Occasioning Actual Bodily Harm in Company' 'affray' 'childhood Deprivation and Disadvantage' 'alcohol Use Disorder' 'self Induced Intoxication' 'moral Culpability' 'standard Non Parole Period' 'special Circumstances' 'covid 19 Custodial Conditions' 'aggregate Sentence']

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Procedural Posture

Criminal Sentencing / Sentence Following Pleas of Guilty

Legal Issues

  1. 1 ['What sentence should be imposed for assault occasioning actual bodily harm in company, reckless wounding and affray.' "Whether the offender's background of childhood deprivation and disadvantage reduced moral culpability and whether a causal connection with the offending was required." "Whether the offender's Alcohol Use Disorder and mental state could be taken into account without contravening s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)." 'What weight should be given to general deterrence, specific deterrence, denunciation, punishment, rehabilitation and protection of the community.' 'Whether special circumstances justified variation of the statutory ratio, including because of COVID-19 custodial conditions and the need for supervision and treatment.']

Ratio Decidendi

The offences warranted full-time imprisonment because they involved alcohol-fuelled public violence, including an unprovoked assault and a glassing that caused permanent scarring, while the offender was on parole. However, each offence fell below the middle of the range of objective seriousness; the offender's deprived and traumatic background reduced moral culpability; his relevant mental state was taken into account only to the extent not prohibited by s 21A(5AA); the guilty pleas attracted a 25% discount; and special circumstances, including COVID-19 custodial hardship and the need for treatment and supervision, justified an aggregate sentence of 3 years with a non-parole period of 1...

Court Disposition

The offender was convicted of each offence and sentenced to an aggregate term of imprisonment of 3 years with a non-parole period of 1 year and 6 months.

Orders

  • ['The offender is convicted in respect of each offence.' "Count 1: indicative sentence of 14 months' imprisonment, after a 25% discount for the utilitarian value of the plea." "Count 2: indicative sentence of 2 years and 6 months' imprisonment, with a non-parole period of 1 year and 4 months' imprisonment, after a...