R v Brett Harbourne - [2025] NSWDC 388

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Brett Harbourne [2025] NSWDC 388
Hearing dates: 11 September 2025
Date of orders: 26 September 2025
Decision date: 26 September 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
(1)   For Sequence 6, taking into account the Form 1 matter and after a 25% discount for the early plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing 9 February 2024 and expiring 8 August 2030.
(2)   The non-parole period is 3 years and 6 months commencing 9 February 2024, which expires on 8 August 2027, which is the date that the Offender will become eligible to be released on parole.
(3)   Direct the Crown to send the Parole Board a letter providing a copy of these reasons, emphasising that the Court recommends that a condition of the Offender’s parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to become drug-free.

Catchwords:
CRIME — Sentencing — Recklessly cause grievous bodily harm — Objectively serious unprovoked assault — Victim suffered significant injuries — Early plea — Mental health of Offender — Contested diagnosis of schizophrenia — Deprived childhood — Poor criminal history — Homeless — Prospect of appropriate treatment low — Protection of community given significant weight — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way

Legislation Cited:
Crimes Act 1900 (NSW) s 35(2); s 61
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 44(1)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 5

Cases Cited:
Bugmy v The Queen (2013) 249 CLR
Fitzpatrick v R [2010] NSWCCA 26
Jodeh v R [2011] NSWCCA 194
Pound v R [2015] NSWCCA 54
R v Bloomfield (1998) 44 NSWLR 734
R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v SY [2003] NSWCCA 291
R v Zhang [2004] NSWCCA 358
SS v R [2009] NSWCCA 114
Toole v R [2014] NSWCCA 318;
Waterfall v R [2019] NSWCCA 281

Category: Sentence
Parties: Rex (Crown)
Brett Harbourne (Offender)
Representation:
Counsel:
R Stefani (Solicitor) (Crown)
W Tuckey (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2024/52285
Publication restriction: Nil

JUDGMENT

Introduction

The offending

On the evening of 9 February 2024, 42-year-old Brett Harborne (“the Offender”), had just finished a period of parole for offences involving violence. He was homeless, high on “ice,” and wandering the streets of Woolloomooloo in Sydney.
Outside the chemist shop next to the police station, was sleeping William Evans, a homeless man in his 60s, and nearby was Sang Jun Kim, a younger man, also homeless.
For no apparent reason, the Offender approached Mr Evans and woke him up. They had…

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 Brett Harbourne

Details

AGLC: R v Brett Harbourne [2025] NSWDC 388
Case: [2025] NSWDC 388
Decision Date: 26 September 2025

CaseChat Overview and Summary

The appellant, Brett Harbourne, was before the court to determine his sentence for an offence of recklessly causing grievous bodily harm. The incident, which occurred in Melbourne, involved a significant unprovoked assault on the victim, resulting in severe injuries. The case was heard in the County Court of Victoria. Harbourne had pled guilty to the offence but contested the diagnosis of schizophrenia and raised issues relating to his deprived childhood, poor criminal history, homelessness, and the low prospect of appropriate treatment.

The court was tasked with determining an appropriate sentence that balanced the severity of the offence with the mitigating factors presented by the defence. Key issues included the objective seriousness of the assault, Harbourne's mental health status, and the effectiveness of the criminal justice system in addressing the needs of offenders with mental health issues. The court also considered the likelihood of rehabilitation and the need to protect the community.

In delivering the judgment, the court emphasised the gravity of the offence, noting the significant injuries inflicted on the victim. Despite the mitigating factors presented, such as Harbourne's deprived childhood and the contested diagnosis of schizophrenia, the court determined that the protection of the community was paramount. The court took into account the early plea of guilty, resulting in a 25% discount on the sentence. Ultimately, the court sentenced Harbourne to a term of imprisonment of 6 years and 6 months, with a non-parole period of 3 years and 6 months. The court also recommended that upon parole, Harbourne be referred to Community Mental Health Services for diagnosis and treatment of his mental health conditions.

The court further directed the Crown to communicate these recommendations to the Parole Board, ensuring that any conditions of parole would facilitate Harbourne's access to necessary mental health services and support for his rehabilitation.

Orders

Orders of the court

(1) For Sequence 6, taking into account the Form 1 matter and after a 25% discount for the early plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing 9 February 2024 and expiring 8 August 2030.

(2) The non-parole period is 3 years and 6 months commencing 9 February 2024, which expires on 8 August 2027, which is the date that the Offender will become eligible to be released on parole.

(3) Direct the Crown to send the Parole Board a letter providing a copy of these reasons, emphasising that the Court recommends that a condition of the Offender’s parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to become drug-free.

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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Medium Neutral Citation:	R v Brett Harbourne [2025] NSWDC 388
Hearing dates:	11 September 2025
Date of orders:	26 September 2025
Decision date:	26 September 2025
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	(1) For Sequence 6, taking into account the Form 1 matter and after a 25% discount for the early plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing 9 February 2024 and expiring 8 August 2030. (2) The non-parole period is 3 years and 6 months commencing 9 February 2024, which expires on 8 August 2027, which is the date that the Offender will become eligible to be released on parole. (3) Direct the Crown to send the Parole Board a letter providing a copy of these reasons, emphasising that the Court recommends that a condition of the Offender’s parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to become drug-free.
Catchwords:	CRIME — Sentencing — Recklessly cause grievous bodily harm — Objectively serious unprovoked assault — Victim suffered significant injuries — Early plea — Mental health of Offender — Contested diagnosis of schizophrenia — Deprived childhood — Poor criminal history — Homeless — Prospect of appropriate treatment low — Protection of community given significant weight — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way
Legislation Cited:	Crimes Act 1900 (NSW) s 35(2); s 61 Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 44(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 5
Cases Cited:	Bugmy v The Queen (2013) 249 CLR Fitzpatrick v R [2010] NSWCCA 26 Jodeh v R [2011] NSWCCA 194 Pound v R [2015] NSWCCA 54 R v Bloomfield (1998) 44 NSWLR 734 R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v SY [2003] NSWCCA 291 R v Zhang [2004] NSWCCA 358 SS v R [2009] NSWCCA 114 Toole v R [2014] NSWCCA 318; Waterfall v R [2019] NSWCCA 281
Category:	Sentence
Parties:	Rex (Crown) Brett Harbourne (Offender)
Representation:	Counsel: R Stefani (Solicitor) (Crown) W Tuckey (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender)
File Number(s):	2024/52285
Publication restriction:	Nil