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R v Austin

R v Austin

Case [2021] NSWDC 440 25 August 2021

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District Court

New South Wales

Medium Neutral Citation: R v Austin [2021] NSWDC 440
Hearing dates: 20 August 2021
Decision date: 25 August 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 3 years 9 months.

Catchwords:
CRIME- wounding with intent to cause grievous bodily harm - Aggravated detain for advantage (in company)
SENTENCING - Relevant factors on sentence –
nature of wounding - knife used - life threatening injury - Form 1 - early guilty plea - history of disadvantage – born addicted to heroin - risk of institutionalisation - deprived background- drug use - mental illness – COVID -19 – Bugmy factors reduced moral culpability – deterrence- retribution –community protection- victim vindication

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146
Barbaro v The Queen (2014) 253 CLR 58
Barlow v R [2008] NSWCCA 96
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chenhallv R [2021] VSCA 175
Donald (a pseudonym) v R [2021] NSWCCA 198
DPP (Cth) v De La Rosa [2010] 205 A Crim R 1
Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45
Hookey v R [2012] NSWCCA 203
Jackson v R [2010] NSWCCA 162
Jinette v R [2012] NSWCCA 217
Markarianv The Queen (2005) 228 CLR 357
Mbele v R [2021] NSWCCA 182
McCullough v R [2009] NSWCA 95
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Newman v R [2015] NSWCCA 270
Perrin v R [2021] NSWDC 408
Queen v Pham (2015) 256 CLR 550: [2015] HCA 39
R v Dodd [1991] 57 A Crim R 349
R v Dole; R v Nguyen [2010] NSWCCA 101
R v Herring (1956) 73 WN (NSW) 203
R v Hookey [2018] NSWCCA 147
R v Hoskins [2021] NSWCA 169
R v Rayment [2010] NSWCCA 85; 200 A Crim R 48
R v Stonestreet [2020] NSWCCA 212
Veen v The Queen (No 2) (1988) 164 CLR 465
Worboyesv R [2021] VSCA 169

Category: Sentence
Parties: Cruz Angel Austin (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender)
Solicitors:
Good Legal Lawyers (for the offender)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s): 2020/00144426
Publication restriction: I make a temporary suppression order for publication of the names of alleged co-offenders until the determination of their matters. Pseudonyms will be used in this judgment.

sentence

Introduction

Cruz Austin was born addicted to heroin. He is now 28 years old. Since he was a teenager he has spent as many years in…

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.

Continue reading R v Austin

Details

AGLC: R v Austin [2021] NSWDC 440
Case: [2021] NSWDC 440
Decision Date: 25 August 2021

CaseChat Overview and Summary

In the case of R v Austin, the appellant was convicted of wounding with intent to cause grievous bodily harm and aggravated detention for advantage while acting in company. The matter was heard and determined by the sentencing court. The court was tasked with determining the appropriate sentence for the appellant, considering the nature of the offence, the use of a knife, the life-threatening injury inflicted on the victim, the appellant's early guilty plea, his history of disadvantage, his drug addiction, mental illness, and the impact of COVID-19 on his moral culpability. The court also considered factors such as deterrence, retribution, community protection, and victim vindication.

The court considered the Bugmy factors in assessing the appellant's moral culpability. It took into account the appellant's deprived background, drug use, and mental illness, which were said to have reduced his moral culpability. However, the court also noted that the offence was committed in company, and the use of a knife caused a life-threatening injury to the victim. The court found that the appellant's early guilty plea and history of disadvantage were mitigating factors that warranted a reduced sentence. Nevertheless, the court considered the need for deterrence, retribution, community protection, and victim vindication in determining the appropriate sentence.

The court sentenced the appellant to a term of imprisonment of 6 years and 9 months, with a non-parole period of 3 years and 9 months. The court found that the sentence was appropriate, considering the aggravating and mitigating factors. The court emphasised the need for community protection and deterrence, while also taking into account the appellant's history of disadvantage and reduced moral culpability. The court also considered the impact of COVID-19 on the appellant's moral culpability and found that it warranted a reduced sentence.

The court ordered that the appellant be imprisoned for a term of 6 years and 9 months, with a non-parole period of 3 years and 9 months. The court considered all relevant factors and determined that this sentence was appropriate, considering the nature of the offence, the use of a knife, the life-threatening injury inflicted on the victim, and the appellant's early guilty plea, history of disadvantage, drug addiction, mental illness, and the impact of COVID-19 on his moral culpability. The court emphasised the need for community protection, deterrence, retribution, and victim vindication in determining the appropriate sentence.

Orders

Orders of the court

Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 3 years 9 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Austin [2021] NSWDC 440

Most Recent Citation

R v Levvell [2021] NSWDC 518

Cases citing this decision · 2 of 2 shown

R v Bentley; R v Cockburn; R v Buddle; R v Dawes; R v Pfitzner
[2022] NSWDC 755 Para 2

…I have sentenced Luke Levvell and Cruz Austin, two of the others involved: R v Levvell [2021] NSWDC 518; R v Austin [2021] NSWDC 440. Robert Cockburn and Rachel Dawes were convicted after trial by jury on 15 February 2022 of a s 86(2)(a) Crimes Act 1900 (NSW) offence. Cockburn was also convicted of two other offenc…
R v Levvell
[2021] NSWDC 518 Para 27

…2021 for a wounding with intent offence. The detain for advantage offence was taken into account on a Criminal Procedure Act 1986 Form 1: R v Austin [2021] NSWDC 440.…

View all 2 citing cases →

Cases cited in this decision · 28 of 28 shown

Donald (a pseudonym) v R
[2021] NSWCCA 198 Para 53

…a consequent reduction of the need to denounce the crime: DPP (Cth) v De La Rosa [2010] 205 A Crim R 1; see most recently Donald (a pseudonym) v R [2021] NSWCCA 198.…
Perrin v R
[2021] NSWDC 408 Para 3

…ng Procedure) Act 1999 (C(SP) Act) . His counsel relied on two recent decisions of the Victorian Court of Appeal, I cited with approval in Perrin v R [2021] NSWDC 408, where it was said that:…
GR v The Secretary, Department of Communities and Justice
[2021] NSWCA 169 Para 64

…ect of social exclusion, disempowerment, discrimination and violent environments: R v Hookey [2018] NSWCCA 147, per Rothman [61] - [64] ; R v Hoskins [2021] NSWCA 169.…
Mbele v R
[2021] NSWCCA 182 Para 5

…sised along with all other matters. I hear evidence, sometimes daily, about how prisoners are negatively impacted by COVID-19 restrictions: Mbele v R [2021] NSWCCA 182.…
Chenhall v The Queen
[2021] VSCA 175

…146 Barbaro v The Queen (2014) 253 CLR 58 Barlow v R [2008] NSWCCA 96 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Chenhall v R [2021] VSCA 175 Donald (a pseudonym) v R [2021] NSWCCA 198 DPP (Cth) v De La Rosa [2010] 205 A Crim R 1 Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45 Hookey v R [2012] NSWCC…
Worboyes v The Queen
[2021] VSCA 169

…R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 R v Stonestreet [2020] NSWCCA 212 Veen v The Queen (No 2) (1988) 164 CLR 465 Worboyes v R [2021] VSCA 169 Category: Sentence Parties: Cruz Angel Austin (the offender) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defender (for the offende…
R v Spinks
[2021] NSWSC 649 Para 30

…tencing judge must categorise offence in such relative terms: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]; R v Spinks [2021] NSWSC 649 at [39]. But it is not in dispute that I have to have regard to the standard non-parole period and give it some content. In giving content to the sta…
R v Stonestreet
[2020] NSWCCA 212 Para 63

…where crimes are committed by those whose moral culpability is reduced and for whom specific deterrence has reduced significance: R v Stonestreet [2020] NSWCCA 212 at [33]…
R v Hookey
[2018] NSWCCA 147 Para 64

…er lies in treatment that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environments: R v Hookey [2018] NSWCCA 147, per Rothman [61] - [64] ; R v Hoskins [2021] NSWCA 169.…
R v Pham
[2015] HCA 39 Para 32

…ighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’ Queen v Pham (2015) 256 CLR 550: [2015] HCA 39; at [46], applying Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45.…
Newman v R
[2015] NSWCCA 270 Para 24

…. That a knife was involved is an aggravating factor, even though virtually every serious wounding offence involves a weapon of some kind: Newman v R [2015] NSWCCA 270; Hookey v R [2012] NSWCCA 203 at 67-74. The only thing that can be said on Austin’s behalf is that having stabbed his victim he did not persist with…
Barbaro v The Queen
[2014] HCA 2

…tion under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Barlow v R [2008] NSWCCA 96 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Chenhall v R [2021] VSCA 175 Donald (a pseudonym) v R [2021] NSWCCA 198 DPP (Cth) v…
Munda v Western Australia
[2013] HCA 38 Para 70

…ting to self-help, and the consequent escalation of violent vendettas between members of the community. Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, at [52] to [58].…
Bugmy v The Queen
[2013] HCA 37 Para 49

…culpability is less than the culpability of an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy at…
Abbas, Bodiotis, Taleb and Amoun v R
[2013] NSWCCA 115 Para 33

…penalty for the wounding offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146; and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. I do not “in any sense” impose sentences for that offence:…
Jinnette v R
[2012] NSWCCA 217 Para 37

…he face of entrenched and serious recidivism, here justifies a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinette v R [2012] NSWCCA 217 at [103.…
AM v R
[2012] NSWCCA 203 Para 24

…an aggravating factor, even though virtually every serious wounding offence involves a weapon of some kind: Newman v R [2015] NSWCCA 270; Hookey v R [2012] NSWCCA 203 at 67-74. The only thing that can be said on Austin’s behalf is that having stabbed his victim he did not persist with the knife attack and left the…
Cargnello v Director of Public Prosecutions (Cth)
[2012] NSWCCA 162 Para 30

…is still a debate as to whether a sentencing judge must categorise offence in such relative terms: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]; R v Spinks [2021] NSWSC 649 at [39]. But it is not in dispute that I have to have regard to the standard non-parole period and give it some…
Muldrock v The Queen
[2011] HCA 39 Para 30

…ective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27].…
Hili v The Queen
[2010] HCA 45 Para 32

…ever be precisely the same as in a past case or cases.’’ Queen v Pham (2015) 256 CLR 550: [2015] HCA 39; at [46], applying Hili v The Queen , (2010) 242 CLR 520; [2010] HC 45.…
Jackson v R
[2010] NSWCCA 162 Para 37

…risk of institutionalisation, even in the face of entrenched and serious recidivism, here justifies a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinette v R [2012] NSWCCA 217 at [103.…
R v Dole; R v Nguyen
[2010] NSWCCA 101 Para 60

…t lessen its objective gravity: Barlow v R [2008] NSWCCA 96; R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 at [106] – [108]; R v Dole; R v Nguyen [2010] NSWCCA 101.…
R v Rayment
[2010] NSWCCA 85 Para 60

…g that offender’s motive for the commission of such a serious offence cannot lessen its objective gravity: Barlow v R [2008] NSWCCA 96; R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 at [106] – [108]; R v Dole; R v Nguyen [2010] NSWCCA 101.…
Dominello v Dominello; Dominello v The Nominal Defendant
[2009] NSWCA 95 Para 22

…sult based offence. Generally speaking, the seriousness of the offence will depend significantly upon the seriousness of the wounding: McCullough v R [2009] NSWCA 95. And, again speaking generally where the wounding has serious consequences considerable weight needs to be given to general and specific deterrence a…
Barlow v R
[2008] NSWCCA 96 Para 60

…nte action such as this. Noting that offender’s motive for the commission of such a serious offence cannot lessen its objective gravity: Barlow v R [2008] NSWCCA 96; R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 at [106] – [108]; R v Dole; R v Nguyen [2010] NSWCCA 101.…
Markarian v The Queen
[2005] HCA 25 Para 34

…count part of the instinctive synthesis approach to sentencing explained by Justice McHugh in Markarian v The Queen (2005) 228 CLR 357, at [51]-[54]; [2005] HCA 25. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] –…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 33

…unding offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146; and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. I do not “in any sense” impose sentences for that offence: Attorney General’s A…
Veen v The Queen (No 2)
[1988] HCA 14 Para 36

…ence, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…

Legislation cited in this decision · 4

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 66)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Austin [2021] NSWDC 440
Hearing dates:	20 August 2021
Decision date:	25 August 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 3 years 9 months.
Catchwords:	CRIME- wounding with intent to cause grievous bodily harm - Aggravated detain for advantage (in company) SENTENCING - Relevant factors on sentence – nature of wounding - knife used - life threatening injury - Form 1 - early guilty plea - history of disadvantage – born addicted to heroin - risk of institutionalisation - deprived background- drug use - mental illness – COVID -19 – Bugmy factors reduced moral culpability – deterrence- retribution –community protection- victim vindication
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Barlow v R [2008] NSWCCA 96 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Chenhallv R [2021] VSCA 175 Donald (a pseudonym) v R [2021] NSWCCA 198 DPP (Cth) v De La Rosa [2010] 205 A Crim R 1 Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45 Hookey v R [2012] NSWCCA 203 Jackson v R [2010] NSWCCA 162 Jinette v R [2012] NSWCCA 217 Markarianv The Queen (2005) 228 CLR 357 Mbele v R [2021] NSWCCA 182 McCullough v R [2009] NSWCA 95 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Newman v R [2015] NSWCCA 270 Perrin v R [2021] NSWDC 408 Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 R v Dodd [1991] 57 A Crim R 349 R v Dole; R v Nguyen [2010] NSWCCA 101 R v Herring (1956) 73 WN (NSW) 203 R v Hookey [2018] NSWCCA 147 R v Hoskins [2021] NSWCA 169 R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 R v Stonestreet [2020] NSWCCA 212 Veen v The Queen (No 2) (1988) 164 CLR 465 Worboyesv R [2021] VSCA 169
Category:	Sentence
Parties:	Cruz Angel Austin (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Solicitors: Good Legal Lawyers (for the offender) Ms A Cabrera (for Director of Public Prosecutions)
File Number(s):	2020/00144426
Publication restriction:	I make a temporary suppression order for publication of the names of alleged co-offenders until the determination of their matters. Pseudonyms will be used in this judgment.