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R v Casey

R v Casey

Case [2019] NSWDC 751 17 December 2019

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District Court

New South Wales

Medium Neutral Citation: R v Casey [2019] NSWDC 751
Hearing dates: 22 December 2019
Date of orders: 17 December 2019
Decision date: 17 December 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs 64-68

Catchwords: CRIME – break and enter dwelling house – armed with intent to commit indictable offence - assault – reckless wounding– intimidation – detain with intent of obtaining an advantage
SENTENCING – aggravating factors – presence of child – home of victim – breach of conditional liberty
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Bugmy factors
Legislation Cited: Crimes Act, 1900
Crimes (Domestic and Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act
Cases Cited: R v AD [2008] NSWCCA 289
Aslan v R [2014] NSWCCA 114
Beale v R [2015] NSWCCA 120
R v Biles (No 2) [2017] NSWSC 525
Bugmy v The Queen [2013] HCA 37
Cherry v R [2017] NSWCCA 150
R v Eckermann [2013] NSWCCA 188
Efthimiadis v R (No 2) [2016] NSWCCA 9
Hamid v R [2006] NSWCCA 302
Hart v R [2014] NSWCCA 172
Hiron v R [2007] NSWCCA 336
Hunter v R [2011] NSWCCA 141
Jackson v R [2010] NSWCCA 162
McCullough v R [2009] NSWCCA 94
McNaughton v R (2006) 66 NSWLR 566
R v Mitchell & Gallagher (2007) 177 A Crim R 94
R v Merrin [2007] NSWCCA 255
Muldrock v The Queen [2011] HCA 39
Munda v The Queen [2013] HCA 38
Ngati v R [2014] NSWCCA 125
Speechley v R [2012] NSWCCA 130
Veen v The Queen (No 2) (1988) 164 CLR 465
Vragovic v R [2007] NSWCCA 46
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Chad CASEY (Offender)
Representation:
Counsel:
Mr P Swaine (for the offender)
Solicitors:
Ms J Dawson (for the Crown)

File Number(s): 2016/182079, 2016/176632
Publication restriction: No

Judgment

The offender appears for sentence in respect of a total of eight offences. On 30 January 2019 the offender pleaded guilty to three charges on an indictment (i.e. the first indictment), namely:

That (he) on or about 2 June 2016 at Batlow in the State of New South Wales was armed with a weapon namely a knife with intent to commit an indictable offence, namely intimidate within intent to cause fear, contrary to s 114(1)(a) of the Crimes Act, 1900, and further that

(he) on or about 2 June 2016 at Batlow in the State of New South Wales did assault Robyn Penrith, contrary to s 61 of the Crimes Act and further that

(He) on or about 2 June 2016 in Batlow and Tumut in the State of New South Wales, did recklessly wound Terrence Casey, contrary to s 35(4) of the Crimes Act.

There were other matters outstanding against the accused and they were stood over for trial to commence on 2 September 2019. On 3 September 2019 following plea negotiations the offender pleaded guilty to five counts on an indictment (i.e. the second indictment), namely that…

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 Casey

Details

AGLC: R v Casey [2019] NSWDC 751
Case: [2019] NSWDC 751
Decision Date: 17 December 2019

CaseChat Overview and Summary

In the case of R v Casey, the defendant was charged with break and enter dwelling house, armed with intent to commit an indictable offence, assault, reckless wounding, intimidation, and detain with intent to obtain an advantage. The matter was heard in the Supreme Court of Queensland. The defendant's actions resulted in a significant altercation at the victim's home, which had a severe impact on the victim and her young child present during the incident.

The legal issues that the court had to decide were whether the defendant's actions constituted a breach of conditional liberty, and if so, what the appropriate sentence should be. The court had to consider aggravating factors, such as the presence of a child during the incident, the home of the victim, and general deterrence, in determining the sentence. The court also had to consider the Bugmy factors, which are relevant factors on sentence, when deciding on the appropriate sentence for the defendant.

The court found that the defendant's actions did constitute a breach of conditional liberty. The court took into account the aggravating factors and the Bugmy factors when determining the appropriate sentence. The court considered the need for general deterrence, the seriousness of the offence, and the defendant's criminal history when deciding on the sentence. Ultimately, the court sentenced the defendant to a term of imprisonment, with specific details outlined in paragraphs 64-68 of the judgment.

Orders

Orders of the court

Sentenced – see paragraphs 64-68

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 Casey [2019] NSWDC 751

Most Recent Citation

DPP v Perry [2016] VSCA 152

Cases Citing This Decision

DPP v Perry [2016] VSCA 152
Citation 1 (Para 1)

…5]; DPP (Cth) v Gregory (2011) 34 VR 1, 21 [76]; Romero v The Queen (2011) 32 VR 486, 489–90 [11]; DPP v Bourozikas [2009] VSCA 29 [30]. See also R v Casey (1986) 20 A Crim R 191, 195; DPP v Bulfin (1998) 4 VR 114; DPP v Arvanitidis (2008) 202 A Crim R 300, 311–12 [38]–[40]; R v MacNeil-Brown (2008) 20 VR 677, 681…
R v Hannes [2000] NSWCCA 503
Citation 2 (Para 18)

…nt’s favour, it may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” See also R v Casey (1926) 26 SR (NSW) 189 at 193.…

See all citing cases →

Cases Cited

Cherry v R [2017] NSWCCA 150
Citation 1 (Para 37)

…at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter [36]); Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86] and Cherry v R [2017] NSWCCA 150 at [76]-[80]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. I also note the statements made in this regar…
R v Biles (No 2) [2017] NSWSC 525
Citation 2 (Para 37)

…dis v R (No 2) [2016] NSWCCA 9 at [86] and Cherry v R [2017] NSWCCA 150 at [76]-[80]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. I also note the statements made in this regard by the High Court in Munda v The Queen [2013] HCA 38.…
Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
Citation 3 (Para 37)

…46 at [33]; Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter [36]); Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86] and Cherry v R [2017] NSWCCA 150 at [76]-[80]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. I al…
Beale v R [2015] NSWCCA 120
Citation 4 (Para 50)

…162 at [24] per Fullerton J and Hart v R [2014] NSWCCA 172 at [29]-[31] per Bellew J. However, I also note the judgment of Beech-Jones J in Beale v R [2015] NSWCCA 120 at [68]-[69]. This issue is also one of the many factors that go to the finding of special circumstances.…
Hart v R [2014] NSWCCA 172
Citation 5 (Para 50)

…ier in these remarks to the issue of institutionalisation. I note the decisions of Jackson v R [2010] NSWCCA 162 at [24] per Fullerton J and Hart v R [2014] NSWCCA 172 at [29]-[31] per Bellew J. However, I also note the judgment of Beech-Jones J in Beale v R [2015] NSWCCA 120 at [68]-[69]. This issue is also one of…
Ngati v R [2014] NSWCCA 125
Citation 6 (Para 48)

…e decision of the plurality in Muldrock v The Queen [2011] HCA 39 at [54] but also the decisions of Aslan v R [2014] NSWCCA 114 and Ngati v R [2014] NSWCCA 125.…
Aslan v R [2014] NSWCCA 114
Citation 7 (Para 48)

…s or mental condition. I note the decision of the plurality in Muldrock v The Queen [2011] HCA 39 at [54] but also the decisions of Aslan v R [2014] NSWCCA 114 and Ngati v R [2014] NSWCCA 125.…
Munda v Western Australia [2013] HCA 38
Citation 8 (Para 37)

…ntence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. I also note the statements made in this regard by the High Court in Munda v The Queen [2013] HCA 38.…
Bugmy v The Queen [2013] HCA 37
Citation 9 (Para 42)

…paragraph 17 of the report. Given these factors I am more than satisfied that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender’s moral culpability.…
R v Eckermann [2013] NSWCCA 188
Citation 10 (Para 37)

…ars. Some of the decisions are Hamid v R [2006] NSWCCA 302; Vragovic v R [2007] NSWCCA 46 at [33]; Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter [36]); Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86] and Cherry v R [2017] NSWCCA 150 at [76]-[80]. See also…
R v Speechley [2012] NSWCCA 130
Citation 11 (Para 30)

…l satisfaction. In all of the circumstances the matter is below mid-range but only marginally so. I have considered the decision of Speechley v R [2012] NSWCCA 130 at [105]-[110] in coming to this conclusion.…
Muldrock v The Queen [2011] HCA 39
Citation 12 (Para 48)

…even a clear or particular diagnosis of any mental illness or mental condition. I note the decision of the plurality in Muldrock v The Queen [2011] HCA 39 at [54] but also the decisions of Aslan v R [2014] NSWCCA 114 and Ngati v R [2014] NSWCCA 125.…
Hunter v R [2011] NSWCCA 141
Citation 13 (Para 29)

…I note the observations of Adams J in Hunter v R [2011] NSWCCA 141 at 52, which, although dealing with different offending, offers some guidance as to the assessment of the objective seriousness of matters contrary to s 112(2) of the Crimes Act .…
Jackson v R [2010] NSWCCA 162
Citation 14 (Para 50)

…I referred earlier in these remarks to the issue of institutionalisation. I note the decisions of Jackson v R [2010] NSWCCA 162 at [24] per Fullerton J and Hart v R [2014] NSWCCA 172 at [29]-[31] per Bellew J. However, I also note the judgment of Beech-Jones J in Beale v R [2015] NSWCCA 120 at [68]-[69]. This issue…
McCullough v R [2009] NSWCCA 94
Citation 15 (Para 12)

…as reckless wounding are generally “result offences” – see R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] and McCullough v R [2009] NSWCCA 94 at [37].…
R v AD [2008] NSWCCA 289
Citation 16 (Para 35)

…further factor of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act . On this issue also see for example R v AD [2008] NSWCCA 289 at [41].…
Hiron v R [2007] NSWCCA 336
Citation 17 (Para 37)

…matters of domestic violence over the years. Some of the decisions are Hamid v R [2006] NSWCCA 302; Vragovic v R [2007] NSWCCA 46 at [33]; Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter [36]); Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86] and Cherry v R…
R v Merrin [2007] NSWCCA 255
Citation 18 (Para 57)

…be imposed in respect of those matters. There would need to be some meaningful partial accumulation. In that regard I note the decision of R v Merrin [2007] NSWCCA 255. There would also need to be a degree of accumulation to recognise the criminality involved in the kidnapping and the s 114(1)(a) offences. However,…
Vragovic v R [2007] NSWCCA 46
Citation 19 (Para 37)

…n the need for general deterrence in matters of domestic violence over the years. Some of the decisions are Hamid v R [2006] NSWCCA 302; Vragovic v R [2007] NSWCCA 46 at [33]; Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter [36]); Efthimiadis v R (No 2) [2…
R v Hamid [2006] NSWCCA 302
Citation 20 (Para 37)

…ade a number of pronouncements on the need for general deterrence in matters of domestic violence over the years. Some of the decisions are Hamid v R [2006] NSWCCA 302; Vragovic v R [2007] NSWCCA 46 at [33]; Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter […
Veen v The Queen (No 2) [1988] HCA 14
Citation 21 (Para 32)

…edging ever closer to the his record being treated as a factor of aggravation in accordance with the principles enunciated in Veen v The Queen (No 2) (1988) 164 CLR 465 and McNaughton v R (2006) 66 NSWLR 566.…

Legislation Cited

No legislation cited in this judgment.

Medium Neutral Citation:	R v Casey [2019] NSWDC 751
Hearing dates:	22 December 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs 64-68
Catchwords:	CRIME – break and enter dwelling house – armed with intent to commit indictable offence - assault – reckless wounding– intimidation – detain with intent of obtaining an advantage SENTENCING – aggravating factors – presence of child – home of victim – breach of conditional liberty SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Bugmy factors
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act
Cases Cited:	R v AD [2008] NSWCCA 289 Aslan v R [2014] NSWCCA 114 Beale v R [2015] NSWCCA 120 R v Biles (No 2) [2017] NSWSC 525 Bugmy v The Queen [2013] HCA 37 Cherry v R [2017] NSWCCA 150 R v Eckermann [2013] NSWCCA 188 Efthimiadis v R (No 2) [2016] NSWCCA 9 Hamid v R [2006] NSWCCA 302 Hart v R [2014] NSWCCA 172 Hiron v R [2007] NSWCCA 336 Hunter v R [2011] NSWCCA 141 Jackson v R [2010] NSWCCA 162 McCullough v R [2009] NSWCCA 94 McNaughton v R (2006) 66 NSWLR 566 R v Mitchell & Gallagher (2007) 177 A Crim R 94 R v Merrin [2007] NSWCCA 255 Muldrock v The Queen [2011] HCA 39 Munda v The Queen [2013] HCA 38 Ngati v R [2014] NSWCCA 125 Speechley v R [2012] NSWCCA 130 Veen v The Queen (No 2) (1988) 164 CLR 465 Vragovic v R [2007] NSWCCA 46
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Chad CASEY (Offender)
Representation:	Counsel: Mr P Swaine (for the offender) Solicitors: Ms J Dawson (for the Crown)
File Number(s):	2016/182079, 2016/176632
Publication restriction:	No