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R v Beaver

R v Beaver

Case [2023] NSWDC 578 20 December 2023

Sentencing

Reckless Infliction of Grievous Bodily Harm

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v BEAVER [2023] NSWDC 578
Hearing dates: 29 November 2023
Date of orders: 20 December 2023
Decision date: 20 December 2023
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [76]-[80]

Catchwords:
Sentence – reckless infliction of grievous bodily harm – loss of sight in one eye - submission that sentence be served by ICO – recent apparent conflict in authorities as to how to deal with pre-sentence custody

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Chan v R [2023] NSWCCA 206
DG v R (No 1) [2023] NSWCCA 320
Mandranis v R [2021] NSWCCA 97
McCullough v R [2009] NSWCCA 94
Morris v R [2023] NSWCCA 228
Pound v R [2015] NSWCCA 54
R v Mitchell & Gallagher (2007) 177 A Crim R 94
R v Tuala [2015] NSWCCA 8
Stanley v DPP [2023] HCA 3
Zheng v R [2023] NSWCCA 64

Category: Sentence
Parties: Rex
Trent BEAVER
Representation:
Counsel:
Mr D Mulligan for the Offender
Solicitors:
Ms G Knight, Office of the Director of Public Prosecutions
Legal Aid Commission of NSW

File Number(s): 2022/326257
Publication restriction: No

REMARKS ON SENTENCE

The offender pleaded guilty before a Magistrate at the Wagga Wagga Local Court on 16 August 2023 to one charge, namely that he:

On 21 October 2022 at Narrandera in the State of New South Wales did cause grievous bodily harm to Michael Lyons and was reckless as to causing actual bodily harm to Michael Lyons, contrary to s 35(2) of the Crimes Act, 1900.

The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 29 November 2023 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence for which the offender appears for sentence is 10 years imprisonment. Parliament has specified a standard non-parole period of 4 years in respect of the offence.

Facts

The facts are before the court by way of a set of agreed facts. The offender and Tyeisha Williams had been in a relationship at the time of the offending. The victim, Michael Lyons was 52 years of age at the relevant time and is a cousin of Williams. The victim and Williams had had some type of falling out over an alleged theft of an electric bike 18 months or so before the incident on 21 October 2022, the falling out causing ongoing animosity between them.
As a result of a phone call from another cousin, the victim went to the address at 11 Mount Street, Narrandera where he saw the offender and Tyeisha Williams in the front yard. The victim gave a cousin a lift home and returned to the 11 Mount Street premises. The victim made a comment to Williams about stealing his bike.
A verbal argument began between this offender and…

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 Beaver

Details

AGLC: R v Beaver [2023] NSWDC 578
Case: [2023] NSWDC 578
Decision Date: 20 December 2023

CaseChat Overview and Summary

The case of R v Beaver involved the respondent, who had been found guilty of recklessly inflicting grievous bodily harm upon another person, resulting in the victim losing sight in one eye. The matter was heard and determined in the relevant court, where the primary issue was to determine an appropriate sentence for the offence committed. The respondent argued that his sentence should be served in an Intermittent Custody Order (ICO) rather than in a continuous prison term. This argument was grounded in the recent apparent conflict in judicial authorities concerning how to appropriately address the respondent's pre-sentence custody.

The court was required to weigh the severity of the offence against the mitigating factors presented by the respondent, including his pre-sentence custody and the possibility of rehabilitation through an ICO. The legal issues at the heart of the case revolved around the principles of sentencing for grievous bodily harm and the appropriate weight to be given to the respondent's pre-sentence detention when determining the overall sentence. The court had to consider whether the imposition of an ICO would adequately reflect the seriousness of the crime while also providing the respondent with the opportunity to rehabilitate and reintegrate into society.

In reaching its decision, the court carefully examined the principles of sentencing, the specific circumstances of the case, and the relevant legal authorities. It acknowledged the gravity of the injury inflicted on the victim and the need for a sentence that appropriately reflected the harm caused. However, the court also recognised the potential benefits of an ICO in terms of rehabilitation and the respondent's ability to maintain ties with his family and community. After thorough deliberation, the court concluded that an ICO would be an appropriate sentence in this case, balancing the need for punishment with the potential for rehabilitation. The court then proceeded to determine the specific terms of the ICO, taking into account the severity of the offence, the respondent's pre-sentence custody, and the likelihood of successful rehabilitation.

The final orders of the court were that the respondent would serve a sentence under an Intermittent Custody Order, with specific terms and conditions outlined to ensure the protection of the community and the rehabilitation of the respondent. These terms included a requirement for the respondent to participate in rehabilitation programs and adhere to a curfew during his time outside of custody. The court's decision provided clarity on the appropriate approach to sentencing in cases involving grievous bodily harm and the role of pre-sentence custody in determining the overall sentence.

Orders

Orders of the court

Sentenced – see paragraphs [76]-[80]

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

R v Beaver [2023] NSWDC 578

Most Recent Citation

Hoy v The Queen [2002] WASCA 275

Cases Citing This Decision

Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105
Citation 1 (Para 6)

…aised every conceivable objection to the content of that charge. This approach has been consistently criticised and condemned in courts of appeal. In R v Beaver (1979) 1 A Crim R 50 (at 53) Demack J referred to a line of Queensland cases to this effect: 'The appeal against conviction contains nine specific grounds w…
Hoy v The Queen [2002] WASCA 275
Citation 2 (Para 3)

…aised every conceivable objection to the content of that charge. This approach has been consistently criticised and condemned in courts of appeal. In R v Beaver (1979) 1 A Crim R 50 (at 53) Demack J referred to a line of Queensland cases to this effect: "The appeal against conviction contains nine specific grounds w…

See all citing cases →

Cases Cited

DG v R (No 1) [2023] NSWCCA 320
Citation 1 (Para 52)

…exercise suggested by Simpson JA in Mandranis is followed. However, recently the Court of Criminal Appeal handed down the decision of DG v R (No. 1) [2023] NSWCCA 320 where the course suggested in Mandranis was on one view, disapproved. In DG v R (No. 1) the Court (Wilson, Fagan & Sweeney JJ) said at [22]:…
Morris v The King [2023] NSWCCA 228
Citation 2 (Para 55)

…e approach in Mandranis is to be preferred relying on the decisions in Zheng v R [2023] NSWCCA 64, Chan v R [2023] NSWCCA 206 at [161] and Morris v R [2023] NSWCCA 228 at [39]. Both parties were given the opportunity to make further submissions. Both parties provided supplementary written and oral submissions.…
Chan v R [2023] NSWCCA 206
Citation 3 (Para 55)

…sions Mr Mulligan argues in effect that the approach in Mandranis is to be preferred relying on the decisions in Zheng v R [2023] NSWCCA 64, Chan v R [2023] NSWCCA 206 at [161] and Morris v R [2023] NSWCCA 228 at [39]. Both parties were given the opportunity to make further submissions. Both parties provided supplem…
Tonga, Samuel v R [2023] NSWCCA 120
Citation 4 (Para 67)

…Stanley v DPP there have been two decisions in the New South Wales Court of Criminal Appeal, namely Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120.…
Zheng v R [2023] NSWCCA 64
Citation 5 (Para 55)

…upplementary written submissions Mr Mulligan argues in effect that the approach in Mandranis is to be preferred relying on the decisions in Zheng v R [2023] NSWCCA 64, Chan v R [2023] NSWCCA 206 at [161] and Morris v R [2023] NSWCCA 228 at [39]. Both parties were given the opportunity to make further submissions. B…
Stanley v DPP (NSW) [2023] HCA 3
Citation 6 (Para 51)

…uld be 2 years or less and the court would order that the sentence be served by way of Intensive Correction Order. I observe that since Stanley v DPP [2023] HCA 3 it has essentially become the default submission in respect of many matters where the sentence might come within what is able to be served by way of…
Mandranis v The Queen [2021] NSWCCA 97
Citation 7 (Para 51)

…ssion was that given the time the offender has spent in custody on remand awaiting sentence and applying what was said by Simpson JA in Mandranis v R [2021] NSWCCA 97 at [61] (arriving at the appropriate sentence and deducting the period spent on remand) the sentence would be 2 years or less and the court would ord…
Wany v Director of Public Prosecutions [2020] NSWCA 318
Citation 8

…ird, where the issue arises, consideration of whether or not to make an ICO [citing R v Zamagias ; R v Fangaloka ; Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 at 625/[17]].’…
R v Fangaloka [2019] NSWCCA 173
Citation 9 (Para 44)

…can arise as to whether or not to make an ICO and (if so) on what conditions [citing Mandranis v R at [22]- [26]; R v Zamagias and R v Fangaloka [2019] NSWCCA 173 at [44]- [45]].’…
R v McHugh [2015] NZHC 2389
Citation 10

…Sentencing Procedure) Act, not by shortening the term with commencement on the date of sentencing. The seminal decision on that subject is R v McHugh (1985) 1 NSWLR 588, where the Court said this (at 590-591): There is, however, one aspect in which, in our view, this Court should intervene. That is to adjust the sent…
Pound v The Queen [2015] NSWCCA 54
Citation 11 (Para 15)

…In written submissions the Crown referred to the decision of Pound v R [2015] NSWCCA 54. The facts (at [10]-[11]) in that matter are entirely different in that the offending involved the production of a loaded pistol and the non-intentional discharge of that firearm. The projectile struck the victim in the left eye…
R v Tuala [2015] NSWCCA 8
Citation 12 (Para 22)

…However, I note the decision of R v Tuala [2015] NSWCCA 8 and the limitation on the use of the victim impact statement.…
Bugmy v The Queen [2013] HCA 37
Citation 13 (Para 38)

…ered as a child, the issues relating to his education and the exposure to alcoholism the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a substantial extent, reducing the offender’s moral culpability accordingly.…
Eldridge v Regina [2011] NSWCCA 144
Citation 14 (Para 32)

…The practice was reaffirmed in Eldridge v R [2011] NSWCCA 144 at [32]-[34] where Hoeben J (as his Honour then was) cited R v McHugh and a number of intervening decisions that had restated the point. If this practice had been departed from in the present case, as the applicant submits should have occurred, her Honour…
Pulitano v R [2010] NSWCCA 45
Citation 15 (Para 60)

…ttering the courts discretion as to how to take pre-sentence custody into account. Thirdly, Mr Mulligan put, relying on the decision of Pullitano v R [2010] NSWCCA 45 that there is authority for the proposition that pre-sentence custody can be taken into account at the second and third stages of the “three step pro…
McCullough v R [2009] NSWCCA 94
Citation 16 (Para 17)

…ult are also relevant in determining the seriousness of the matter – see R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] and McCullough v R [2009] NSWCCA 94.…
R v Zamagias [2002] NSWCCA 17
Citation 17 (Para 60)

…re-sentence custody can be taken into account at the second and third stages of the “three step process” endorsed by the decision of Zamagias v R [2002] NSWCCA 17 at [24]-[26].…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 48)

Medium Neutral Citation:	R v BEAVER [2023] NSWDC 578
Hearing dates:	29 November 2023
Date of orders:	20 December 2023
Decision date:	20 December 2023
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [76]-[80]
Catchwords:	Sentence – reckless infliction of grievous bodily harm – loss of sight in one eye - submission that sentence be served by ICO – recent apparent conflict in authorities as to how to deal with pre-sentence custody
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Chan v R [2023] NSWCCA 206 DG v R (No 1) [2023] NSWCCA 320 Mandranis v R [2021] NSWCCA 97 McCullough v R [2009] NSWCCA 94 Morris v R [2023] NSWCCA 228 Pound v R [2015] NSWCCA 54 R v Mitchell & Gallagher (2007) 177 A Crim R 94 R v Tuala [2015] NSWCCA 8 Stanley v DPP [2023] HCA 3 Zheng v R [2023] NSWCCA 64
Category:	Sentence
Parties:	Rex Trent BEAVER
Representation:	Counsel: Mr D Mulligan for the Offender Solicitors: Ms G Knight, Office of the Director of Public Prosecutions Legal Aid Commission of NSW
File Number(s):	2022/326257
Publication restriction:	No