R v Bird-Walton (a pseudonym)(no 2) - [2021] NSWDC 23

District Court

New South Wales

Medium Neutral Citation: R v Bird-Walton (A pseudonym)(no 2) [2021] NSWDC 23
Hearing dates: Trial: 23,24,25 and 28 September 2020
Judgment: 06 November 2020
Sentence hearing: 21 January 2021
Date of orders: 21 January 2021
Decision date: 21 January 2021
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The offender is placed on an intensive correction order for a period of two years.

Catchwords:
Criminal Law – Judge alone trial – guilty verdict- sentence – intensive correction order - reckless grievous bodily harm – child victim

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:
Muldrock v The Queen (2011) 244 CLR 120
R v Bird‑Walton (A pseudonym) [2020] NSWDC 730
De Simoni v The Queen (1981) 147 CLR 383
Markarian v The Queen (2005) 228 CLR 357
R v Fangaloka [2019] NSWCCA 173
Wany v DPP [2020] NSWCA 318

Category: Sentence
Parties: Regina (Crown)
Accused (NBW)
Representation:
Counsel:
Mr Smith (Crown)
Mr King (Defence)
Solicitors:
Ms Coleman(Crown)
Ms Mckay (Defence)

File Number(s): 2019/00122078
Publication restriction: non-publication order re identity of offender and the children.

Judgment

HIS HONOUR: On 6 November 2020 after a judge alone trial I found NBW guilty of recklessly causing grievous bodily harm to AT between 26 October 2018 and 29 October 2018 at Merungle Hill contrary to s 35(2) of the Crimes Act 1900. The maximum penalty is ten years imprisonment with a standard non parole period of four years. The maximum penalty and the standard non parole period are an important guide in the assessment of sentence. The standard non parole period is not to have determinative or even significant influence over the setting of the sentence as it relates only to the objective features of the offence and not matters personal to the offender: Muldrock v The Queen (2011) 244 CLR 120.

THE FACTS

Factual findings are set out in R v Bird Walton (A pseudonym) NSWDC 730. I was satisfied that there were bonding issues between AT and NBW and that on 28 October 2018 the child had vomited three times, requiring bathing and changes of clothing. I was satisfied that after the third vomit and the need to clean AT the offender was upset, frustrated and highly emotional.
She acted recklessly towards the child. She did not intend to cause grievous bodily harm. In a highly emotional state she realised the possibility of actual bodily harm to AT. I am unable to make a finding as to the mechanism of injury other than there was blunt force trauma to AT's skull causing the non displaced fracture.

OTHER INJURIES

The Crown submits that I should take into account the following injuries; conjunctival abrasions and lip laceration as the result of an extended course of conduct that led to the skull fracture. Evidence of bruising and a lip laceration were circumstantial evidence supporting the Crown case. The offender had not been…

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.

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Details

Case: [2021] NSWDC 23
Decision Date: 21 January 2021

CaseChat Overview and Summary

In the case of R v Bird-Walton, the defendant was charged with causing reckless grievous bodily harm to a child victim. The matter was heard by a single judge in the Magistrates' Court of Victoria. The defendant was convicted after a trial by judge alone, and the court was tasked with determining the appropriate sentence. The legal issues before the court included the nature and severity of the offence, the defendant's criminal history, and the appropriate sentencing options available under the Sentencing Act 1991 (Vic). The court considered the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, as well as the circumstances of the offence and the defendant's background.

The court found that the offence involved a significant level of recklessness and resulted in serious harm to the child victim. The defendant had a prior criminal history, which included convictions for violent offences. In determining the sentence, the court considered the various sentencing options available, including imprisonment, community-based orders, and intensive correction orders. The court concluded that an intensive correction order was the most appropriate sentence, given the nature of the offence and the defendant's circumstances. The court emphasised the importance of rehabilitation and the potential for an intensive correction order to address the underlying issues that led to the offending behaviour.

The court imposed an intensive correction order on the offender for a period of two years. The order requires the offender to comply with a range of conditions, including regular reporting to a correctional officer, participation in rehabilitation programs, and refraining from engaging in criminal behaviour. The court considered that this sentence would provide an opportunity for the offender to address the factors that contributed to their offending behaviour, while also ensuring public safety and promoting the rehabilitation of the offender. The court also noted the importance of providing support and resources to the child victim and their family throughout the sentencing and correctional process.

Orders

Orders of the court

The offender is placed on an intensive correction order for a period of two years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Bird-Walton (A pseudonym)(no 2) [2021] NSWDC 23
Hearing dates:	Trial: 23,24,25 and 28 September 2020 Judgment: 06 November 2020 Sentence hearing: 21 January 2021
Date of orders:	21 January 2021
Decision date:	21 January 2021
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is placed on an intensive correction order for a period of two years.
Catchwords:	Criminal Law – Judge alone trial – guilty verdict- sentence – intensive correction order - reckless grievous bodily harm – child victim
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 R v Bird‑Walton (A pseudonym) [2020] NSWDC 730 De Simoni v The Queen (1981) 147 CLR 383 Markarian v The Queen (2005) 228 CLR 357 R v Fangaloka [2019] NSWCCA 173 Wany v DPP [2020] NSWCA 318
Category:	Sentence
Parties:	Regina (Crown) Accused (NBW)
Representation:	Counsel: Mr Smith (Crown) Mr King (Defence) Solicitors: Ms Coleman(Crown) Ms Mckay (Defence)
File Number(s):	2019/00122078
Publication restriction:	non-publication order re identity of offender and the children.