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R v Buddle

R v Buddle

Case [2024] NSWDC 334 8 August 2024

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Buddle [2024] NSWDC 334
Hearing dates: 05 April 2024, 02 August 2024
Date of orders: 08 August 2024
Decision date: 08 August 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender is convicted of the offences.
(2)   I impose a total aggregate sentence of imprisonment of 6 years 6 months to expire on 24 September 2029.
(3)   I impose a non-parole period of 3 years 11 months to expire on 24 February 2027.
(4)   The earliest date the offender is eligible to be released on parole is 24 February 2027.

Catchwords:
CRIME – sentencing – affray – cause grievous bodily harm to person with intent – assault occasioning actual bodily harm in company – form 1 offences - co-offender - parity - guilty plea on first day of trial – aggregate sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, ss 25D(2)(c), 37
Crimes Act 1900, ss 33(1)(b), 59(1), 93C(1)

Cases Cited:
Alkanaan v R [2017] NSWCCA 56
Baden v R [2020] NSWCCA 23
DC v R [2023] NSWCCA 82
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Edquist-Wheeler v R [2024] NSWCCA 49
Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
Giles-Adam v R; Preca v R [2023] NSWCCA 122
Green v R; Quinn v R (2011) 244 CLR 462
Hall v R [2021] NSWCCA 220
KM v R [2023] NSWCCA 10
LN v R [ 2020] NSWCCA 131
Moiler v R [2021] NSWCCA 73
Muldrock v R (2011) 244 CLR 120
Pender v R [2023] NSWCCA 291
R v Eaton [2023] NSWCCA 125
R v Goundar [2001] NSWCCA 198
R v Huynh [2000] NSWCCA 18
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Sharrouf [2023] NSWCCA 13
Regina v JW [2010] NSWCCA 10
Sheen v R [2014] NSWCCA 42
TM v R [2023] NSWCCA 185

Category: Sentence
Parties: Rex
Brett Buddle (Offender)
Representation:
Counsel:
Mr S. Schaudin (Offender)
Solicitors:
Director of Public Prosecutions (DPP) (Crown)
Velasquez Legal (Offender)

File Number(s): 2023/0037810
Publication restriction: NIL

Judgment

The offender pleaded guilty on the first day of trial on 18 March 2024 to the following offences: –

Count 1 – Affray, contrary to section 93C(1) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment.

Count 4 - Cause grievous bodily harm to person with intent, contrary to s 33(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.

The following additional offences are to be dealt with on a Form 1: -

Counts 1, 2, and 3 - Assault occasioning actual bodily harm in company of others contrary to section 59(2) of the Crimes Act 1900 carrying a maximum penalty of 7 years imprisonment.

The maximum penalty for each of these…

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 Buddle

Details

AGLC: R v Buddle [2024] NSWDC 334
Case: [2024] NSWDC 334
Decision Date: 08 August 2024

CaseChat Overview and Summary

In the case of R v Buddle, the appellant faced charges related to an incident of affray and assault. The dispute involved the appellant's involvement in an altercation that resulted in grievous bodily harm to one individual and actual bodily harm to another in the company of a co-offender. The case was heard in the relevant court, where the appellant entered a guilty plea on the first day of the trial.

The legal issues before the court included the appropriate sentence to be imposed on the appellant, taking into account the nature and severity of the offences, the role of the appellant in the incident, and the principle of parity in sentencing co-offenders. Additionally, the court considered the appellant's guilty plea and its impact on the sentencing. The court had to balance the need for punishment, deterrence, and rehabilitation in determining the aggregate sentence.

In delivering the judgment, the court acknowledged the appellant's early guilty plea and the role of the co-offender in the incident. However, the court found the offences to be of significant gravity, particularly due to the severity of the harm caused. The court determined that an aggregate sentence of imprisonment was appropriate, considering the need for punishment and deterrence. The court imposed a total sentence of 6 years and 6 months, with a non-parole period of 3 years and 11 months. The court also specified that the earliest date for parole eligibility was 24 February 2027.

The court's orders included the conviction of the appellant on the charges, the imposition of the specified aggregate sentence, and the determination of the non-parole period and earliest parole eligibility date.

Orders

Orders of the court

(1) The offender is convicted of the offences.

(2) I impose a total aggregate sentence of imprisonment of 6 years 6 months to expire on 24 September 2029.

(3) I impose a non-parole period of 3 years 11 months to expire on 24 February 2027.

(4) The earliest date the offender is eligible to be released on parole is 24 February 2027.

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 Buddle [2024] NSWDC 334

Cases Citing This Decision

No citing cases yet.

Cases Cited

Edquist-Wheeler v R [2024] NSWCCA 49
Citation 1 (Para 69)

…that the offender is not doubly punished to the extent that there is a mere accumulation in the various terms of imprisonment: Edquist-Wheeler v R [2024] NSWCCA 49. In the circumstances, I have determined that the sentence is to commence two months after the commencement of the revoked ICO sentence. Accordingly, t…
Pender v R [2023] NSWCCA 291
Citation 2 (Para 29)

…ome hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.…
TM v R [2023] NSWCCA 185
Citation 3 (Para 51)

…of the statutory ratio of the non-parole period. I find that indeed this is a suitable case for leniency in considering the non-parole period: TM v R [2023] NSWCCA 185 at [103] (Yehia J with whom Payne and Stern JJA agreed).…
R v Eaton [2023] NSWCCA 125
Citation 4 (Para 29)

…nder is to be sentenced, there is no requirement that it be assessed by reference to some hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.…
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Citation 5 (Para 34)

…I accept that the plea is also a further factor in mitigation. As Yehia J (with whom Chen and Wright JJ agreed) observed in Giles-Adam v R; Preca v R [2023] NSWCCA 122, “the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice are conceptually different." As he…
DC v R [2023] NSWCCA 82
Citation 6 (Para 46)

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Citation 7 (Para 54)

…With respect to the Form 1 offences, as Beech-Jones CJ at CL (as his Honour then was) observed in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]:…
R v Sharrouf [2023] NSWCCA 13
Citation 8 (Para 29)

…be assessed by reference to some hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.…
KM v The King [2023] NSWCCA 10
Citation 9 (Para 29)

…here is no requirement that it be assessed by reference to some hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.…
DH v R [2022] NSWCCA 200
Citation 10 (Para 29)

…he offence for which the offender is to be sentenced, there is no requirement that it be assessed by reference to some hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.…
Hall v R [2021] NSWCCA 220
Citation 11 (Para 65)

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total senten…
Moiler v R [2021] NSWCCA 73
Citation 12 (Para 48)

…ffending to the extent that his underlying drug disorder was a contributor to the offending in the context of a relapse into drug use: Moiler v R [2021] NSWCCA 73.…
Baden v R [2020] NSWCCA 23
Citation 13 (Para 35)

…Bell P (as his Honour then was) in Baden v R [2020] NSWCCA 23 observed:…
Luque v R [2017] NSWCCA 226
Citation 14 (Para 114)

…e significance in his offending. [75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in…
Ryan v Regina [2017] NSWCCA 209
Citation 15 (Para 15)

…be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).…
Alkanaan v R [2017] NSWCCA 56
Citation 16 (Para 47)

…that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –…
Sheen v R [2014] NSWCCA 42
Citation 17 (Para 32)

…r participant has taken a more active role in the joint criminal enterprise: Regina v JW [2010] NSWCCA 10; R v Goundar [2001] NSWCCA 198; Sheen v R [2014] NSWCCA 42.…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 18 (Para 59)

…s of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]:…
Muldrock v The Queen [2011] HCA 39
Citation 19 (Para 47)

…Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposi…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 20 (Para 47)

…Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the propos…
Einfeld v R [2010] NSWCCA 87
Citation 21 (Para 57)

…In Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Basten JA (with whom Hulme and Latham JJ agreed) said at [146]:…
DOLAN v R [2010] NSWCCA 10
Citation 22 (Para 32)

…terprise, particularly if it is apparent that one particular participant has taken a more active role in the joint criminal enterprise: Regina v JW [2010] NSWCCA 10; R v Goundar [2001] NSWCCA 198; Sheen v R [2014] NSWCCA 42.…
R v MAK [2006] NSWCCA 381
Citation 23 (Para 65)

…ential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).…
R v Goundar [2001] NSWCCA 198
Citation 24 (Para 32)

…s apparent that one particular participant has taken a more active role in the joint criminal enterprise: Regina v JW [2010] NSWCCA 10; R v Goundar [2001] NSWCCA 198; Sheen v R [2014] NSWCCA 42.…
R v Huynh [2000] NSWCCA 18
Citation 25 (Para 36)

…contemplates a range of offending from “pitched street battles of rival gangs to the more spontaneous responses to unforeseen events”: R v Huynh [2000] NSWCCA 18.…

Legislation Cited

Crimes Act 1900 (ACT) 33(1)(b), 59(1), 93C(1)
4 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW) 25D(2)(c), 37
3 mentions (from Para 33)
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 56)

Medium Neutral Citation:	R v Buddle [2024] NSWDC 334
Hearing dates:	05 April 2024, 02 August 2024
Date of orders:	08 August 2024
Decision date:	08 August 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender is convicted of the offences. (2) I impose a total aggregate sentence of imprisonment of 6 years 6 months to expire on 24 September 2029. (3) I impose a non-parole period of 3 years 11 months to expire on 24 February 2027. (4) The earliest date the offender is eligible to be released on parole is 24 February 2027.
Catchwords:	CRIME – sentencing – affray – cause grievous bodily harm to person with intent – assault occasioning actual bodily harm in company – form 1 offences - co-offender - parity - guilty plea on first day of trial – aggregate sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 25D(2)(c), 37 Crimes Act 1900, ss 33(1)(b), 59(1), 93C(1)
Cases Cited:	Alkanaan v R [2017] NSWCCA 56 Baden v R [2020] NSWCCA 23 DC v R [2023] NSWCCA 82 DH v R [2022] NSWCCA 200 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Edquist-Wheeler v R [2024] NSWCCA 49 Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Giles-Adam v R; Preca v R [2023] NSWCCA 122 Green v R; Quinn v R (2011) 244 CLR 462 Hall v R [2021] NSWCCA 220 KM v R [2023] NSWCCA 10 LN v R [ 2020] NSWCCA 131 Moiler v R [2021] NSWCCA 73 Muldrock v R (2011) 244 CLR 120 Pender v R [2023] NSWCCA 291 R v Eaton [2023] NSWCCA 125 R v Goundar [2001] NSWCCA 198 R v Huynh [2000] NSWCCA 18 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Sharrouf [2023] NSWCCA 13 Regina v JW [2010] NSWCCA 10 Sheen v R [2014] NSWCCA 42 TM v R [2023] NSWCCA 185
Category:	Sentence
Parties:	Rex Brett Buddle (Offender)
Representation:	Counsel: Mr S. Schaudin (Offender) Solicitors: Director of Public Prosecutions (DPP) (Crown) Velasquez Legal (Offender)
File Number(s):	2023/0037810
Publication restriction:	NIL