R v Moon; R v Clarke; R v McCarthy [2020] NSWDC 287

R v Moon; R v Clarke; R v McCarthy [2020] NSWDC 287

Each offender is to be sentenced according to their individual level of culpability and circumstances. Sentences reflect relative moral/legal culpability: Moon most culpable due to his initiating conduct and history; McCarthy next as participant; Clarke least due to limited participation. Provocation was significant in Moon's case. All sentences are substantially mitigated due to pleas of guilty, good prospects of rehabilitation, prior character, and that the offending was isolated, unplanned, and largely provoked. Clarke did not cross the custodial threshold, while Moon and McCarthy did, but alternatives to fulltime imprisonment (ICOs) were appropriate given circumstances.

Jurisdiction
Australia
Judgment Date
27 February 2020
Procedural Posture
Criminal / Sentencing After Guilty Plea
Outcome
Offenders convicted and sentenced. Moon and McCarthy: intensive correction orders for assault, community correction orders for affray. Clarke: community correction orders only.
Legal Topics
['assault Occasioning Actual Bodily Harm' 'affray' 'sentencing' 'joint Criminal Enterprise' 'parity of Sentencing' 'provocation' 'objective/subjective Culpability']
['criminal Law'] ['assault Occasioning Actual Bodily Harm' 'affray' 'sentencing' 'joint Criminal Enterprise' 'parity of Sentencing' 'provocation' 'objective/subjective Culpability']

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Procedural Posture

Criminal / Sentencing After Guilty Plea

Legal Issues

  1. 1 ['What is the appropriate sentence for each offender for assault occasioning actual bodily harm in company and affray?' 'How should parity, provocation, and differential participation affect sentence?' 'Does the offending cross the custodial threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999?']

Ratio Decidendi

Each offender is to be sentenced according to their individual level of culpability and circumstances. Sentences reflect relative moral/legal culpability: Moon most culpable due to his initiating conduct and history; McCarthy next as participant; Clarke least due to limited participation. Provocation was significant in Moon's case. All sentences are substantially mitigated due to pleas of guilty, good prospects of rehabilitation, prior character, and that the offending was isolated, unplanned, and largely provoked. Clarke did not cross the custodial threshold, while Moon and McCarthy did, but alternatives to fulltime imprisonment (ICOs) were appropriate given circumstances.

Court Disposition

Offenders convicted and sentenced. Moon and McCarthy: intensive correction orders for assault, community correction orders for affray. Clarke: community correction orders only.

Orders

  • ['Lachlan Edward Moon: Count 3 (Assault) - 1 year 5 months imprisonment by way of Intensive Correction Order, 150 hours community service; Count 1 (Affray) - Community Correction Order, 12 months.' 'Bradley John McCarthy: Count 3 (Assault) - 1 year 2 months imprisonment by way of Intensive Correction Order, 150...