R v Burton

[2020] NSWDC 246

District Court

New South Wales

Medium Neutral Citation:	R v Burton [2020] NSWDC 246
Hearing dates:	26 May 2020
Date of orders:	26 May 2020
Decision date:	26 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 40
Catchwords:	CRIMINAL LAW – severity appeal – assault occasioning actual bodily harm offence – impact of appellant’s mental health on the offending and the sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW), s 59 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 21A Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Khoury v R [2011] NSWCCA 118 Muldrock v The Queen (2011) 244 CLR 120
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr J Burton
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions Peninsula Law for the appellant
File Number(s):	2019/327888
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 12 February 2020 Before: Magistrate C M Franklin File Number(s): 2019/327888

Judgment

INTRODUCTION

1. This is a severity appeal from the sentence imposed upon the appellant by the Wyong Local Court on 12 February 2020 that he serve a Community Correction Order (‘CCO’) for a period of 2 years.

2. The appellant entered a plea to the charge that on 18 October 2019, at Killarney Vale, he assaulted Catherine Britt, thereby occasioning actual bodily harm to her, to wit, pushing her to the ground causing laceration to her right elbow (requiring 5 stitches) and a graze to her right ankle; this conduct being contrary to s 59(1) of the Crimes Act1900 (NSW).

3. The maximum punishment for this offence, if tried on indictment, is 5 years’ imprisonment. In the Local Court, the maximum punishment is 2 years’ imprisonment and/or $5,500 fine.

CIRCUMSTANCES OF OFFENDING

4. Before the Court was the Facts Sheet before the learned Magistrate. It was included in the Crown’s severity appeal bundle (Exhibit 1). No objection was taken to its contents. There were no other facts before the Court – agreed or otherwise – to establish the circumstances of the offending.

5. The Facts Sheet discloses that:

1. the appellant is a self-employed owner or operator of a building company and has 4 dependent children;

2. the appellant pays $530 weekly rent and has variable income typical of a small business operator;

3. the appellant has no prior violent history;

4. the appellant and Ms Britt, the victim of the assault, were neighbours. Prior to 18 October 2019, they had had a range of prior arguments and neighbourly disputes;

5. at about or shortly up to 1:40pm on 18 October 2019, the victim accused the appellant of moving tree branches from his driveway onto her driveway. They were situated upon the roadway of their respective premises, outside their homes. This caused a heated verbal argument about the tree branches;

6. suddenly, when only 1 or 2 metres away from the victim, the appellant suddenly moved…