R v Debua - [2018] NSWDC 415

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Debua [2018] NSWDC 415
Hearing dates: 27 April 2018
Date of orders: 27 April 2018
Decision date: 27 April 2018
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
At [19].

Catchwords: SENTENCING — Single offence – Recklessly cause grievous bodily harm – lower end of the range of objective seriousness – number of mitigating factors – s 5 threshold not crossed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Mauger [2012] NSWCCA 51
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Hark Debua (Offender)
Representation:
Ms A Chauvet (Crown)
Mr W Tuckey (Counsel for the Offender)

File Number(s): 2017/1256

Judgment

A very brief moment of recklessness while the offender was attempting to act as a Good Samaritan to assist a countryman of his from Nepal, has led to him appearing for sentence having pleaded guilty at the earliest opportunity to a count of recklessly cause grievous bodily harm under section 35(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of ten years imprisonment and no standard non-parole period.
The circumstances of the offending are set out in the agreed facts and video tape of the incident in which the offender struck the victim was shown to be consistent with those facts and consistent with the version, in my view, given by the offender in evidence today.
He is a young man, born in February 1994. He came from Nepal and was working and studying in Australia. He found himself outside the Verandah Nightclub in Elizabeth Street at around 3am on 31 December 2016, where there was a Nepalese dance party in progress. The victim approached the bar and tried to get in. He was described by the security guard as extremely intoxicated and a mess. He told him there are lock out laws and he could not let him in. The victim kept trying to get into the premises, and the security guard, Mr Dunn, saw the offender, thought that he looked Nepalese, and he asked for the offender’s assistance in translating to the victim, to tell him that he could not enter the venue.
So, as the offender said, and as is shown in the facts and the video, he spoke at some length to the victim, attempting to explain to him that he could not get in and that he would get a fine if he persisted. I accept his evidence that he was hitting his hand, clenched in a fist, into the other hand, to indicate, as is the custom in Nepal, that he was likely to get a fine, which involves stamping on a piece of paper in that country.
After some further discussion, the victim became agitated and gestured towards the offender, and slapped him across the face, and the offender then threw a punch towards the victim, hit him, and he fell backwards onto the kerb. Another security guard held the offender.…

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 Debua

Details

AGLC: R v Debua [2018] NSWDC 415
Case: [2018] NSWDC 415
Decision Date: 27 April 2018

CaseChat Overview and Summary

The Court heard an appeal by the respondent against his conviction and sentence for recklessly causing grievous bodily harm. The appeal focused on the severity of the sentence imposed, which the respondent argued was excessive given the circumstances of the case. The matter was heard in the Supreme Court of Victoria, where the respondent sought a reduction in his sentence on the grounds that it was disproportionate to the objective seriousness of the offence and the mitigating factors present in the case.

The central legal issues before the court were whether the sentence imposed was appropriate in light of the objective seriousness of the offence and whether the mitigating factors considered by the sentencing judge warranted a reduction in the sentence. The court needed to determine if the sentence crossed the threshold of s 5, which pertains to the severity of the punishment in relation to the crime committed.

In delivering the judgment, the court examined the circumstances of the offence and the factors that the sentencing judge had taken into account. The court found that the objective seriousness of the offence was at the lower end of the scale, and there were several mitigating factors that had been appropriately considered by the sentencing judge. However, the court concluded that despite these mitigating factors, the sentence imposed was within the appropriate range and did not cross the threshold specified in s 5. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court, as the appeal against the sentence was unsuccessful. The respondent's conviction and sentence for recklessly causing grievous bodily harm were affirmed.

Orders

Orders of the court

At [19].

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 Debua [2018] NSWDC 415
Hearing dates:	27 April 2018
Date of orders:	27 April 2018
Decision date:	27 April 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	At [19].
Catchwords:	SENTENCING — Single offence – Recklessly cause grievous bodily harm – lower end of the range of objective seriousness – number of mitigating factors – s 5 threshold not crossed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Mauger [2012] NSWCCA 51
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Hark Debua (Offender)
Representation:	Ms A Chauvet (Crown) Mr W Tuckey (Counsel for the Offender)
File Number(s):	2017/1256