R v Collins

[2020] NSWDC 276

District Court

New South Wales

Medium Neutral Citation:	R v Collins [2020] NSWDC 276
Hearing dates:	08 May 2020
Date of orders:	05 June 2020
Decision date:	05 June 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 66
Catchwords:	CRIMINAL LAW – severity appeal – indecent assault and domestic violence offences – whether Intensive Correction Order should be substituted as punishment for full-time custody
Legislation Cited:	Crimes Act 1900 (NSW), ss 61, 61L, 61M Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] 56 NSWLR 146 Munda v Western Australia [2013] HCA 38 Patsan v R [2018] NSWCCA 129 Peiris v R [2014] NSWCCA 58
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr NJ Collins
Representation:	Counsel: Ms T Evers for the appellant   Solicitors: Solicitor for the Director of Public Prosecutions Riviere Law for the appellant
File Number(s):	2018/332140
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 19 November 2019 Before: Magistrate AW Railton File Number(s): 2018/332140

Judgment

INTRODUCTION

1. This is an appeal on a sentence imposed in the Gosford Local Court (Magistrate Railton) on 19 November 2019 in respect to which the appellant was sentenced to a term of imprisonment of 21 months with a non-parole period of 12 months, expiring on 18 November 2020. The appellant sought and obtained bail pending this appeal and so has not entered into custody.

2. The sentence was imposed in respect of a guilty plea on the offence that, contrary to s 61L of the Crimes Act1900 (NSW), on 27 October 2018, at Copacabana, the appellant assaulted Kristy Rochester and at the time of the assault committed an act of indecency on her.

3. The maximum penalty for this offence, when tried on indictment, is 5 years’ imprisonment. When tried summarily, as it was here, the maximum punishment is 2 years’ imprisonment and/or a fine of $5,500.

4. The appellant requested that the learned Magistrate take into account two additional offences on a Form 1, they being, that on the same date and in the same place, the appellant:

1. intimidated Kristy Rochester with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act2007 (NSW); and

2. assaulted Kristy Rochester, contrary to s 61 of the Crimes Act1900 (NSW).

5. This appeal is brought pursuant to s 11 of the Crimes (Appeal and Review) Act2001 (NSW). The appeal is by way of rehearing on the basis of the evidence before the Local Court, although fresh evidence may be given (s 17). The Court is required to engage in a fresh exercise of the sentencing discretion on the evidence admitted on the hearing of the appeal.…