R v McAlister

[2021] NSWDC 541

District Court of NSW|2021-09-21|Before: McHugh J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-09-21

Before

McHugh J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

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.
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.
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.
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.
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?
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?

[6]

Legal Principles relating to Assessment of Objective Seriousness

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.
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.
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".
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".
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].
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".
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.
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].
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"

[7]

Assessment of Objective Seriousness

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

[10]

Reckless Wounding

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.
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.
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.
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.
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.
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.
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.
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.

[12]

Background

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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".
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.

[16]

Relevance of the Background of Deprivation and Disadvantage

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".
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".
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.
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.
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]).
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?
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.

[23]

Totality, Concurrency and Accumulation

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.
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.
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.
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.
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".
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.
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.
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.
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.
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.

[24]

Comparative Cases

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.
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.
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".
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.
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.
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.
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.
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.
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.