Legal Research
Cases
R v Foster

R v Foster

Case [2020] NSWDC 648 29 October 2020

Special Circumstances

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v FOSTER [2020] NSWDC 648
Hearing dates: 22 October 2020
Date of orders: 29 October 2020
Decision date: 29 October 2020
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to imprisonment for 2 years 9 months from 29 October 2020, with non parole period of 1 year 6 months

Catchwords:
CRIME – grievous bodily harm in company –
SENTENCING – relevant factors on sentencing – plea of guilty - general deterrence – special circumstances

Legislation Cited:
Crimes Act 1900
Children (Criminal Proceedings) Act, 1987
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Brown v The Queen [2014] NSWCCA 215
Davis v R [2018] NSWCCA 67
Dungay v R [2020] NSWCCA 209
Fangaloka v The Queen [2020] HCASL 12
Fenech v R [2018] NSWCCA 160
Hili & Jones v The Queen [2010] HCA 45
Hoskins v R [2016] NSWCCA 157
Karout v R [2019] NSWCCA 253
Karout v The Queen [2020] HCASL 56
Locke v R (2010) 207 A Crim R 34
McCullough v R [2009] NSWCCA 94
R v Anderson [2012] NSWCCA 175
R v Christopher Michael Hunt [2018] NSWDC 256
R v Dodd (1991) 57 A Crim R 349
R v Fangaloka [2019] NSWCCA 173
R v Loveridge (2014) 243 A Crim R 31
R v McNaughton (2006) 66 NSWLR 566
R v Mitchell & Gallagher (2007) 177 A Crim R 94
R v Murphy [2019] NSWDC 635
R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)
R v Osenkowski (1982) 5 A Crim R 394
R v Steven Turner [2019] NSWDC 8
SS v R [2016] NSWCCA 197
Stevens v R [2017] NSWCCA 216
Tepania v R [2018] NSWCCA 247
Valentine v R [2020] NSWCCA 116
Veen v The Queen (No. 2) (1988) 164 CLR 465

Category: Sentence
Parties: Director of Public Prosecutions (for the Crown)
Lachlan Foster (Offender)
Representation: Counsel:
Mr P Boulten SC (for the Offender)
Solicitors:
Mr S Amvrazis (for the Crown)

File Number(s): 2019/206512
Publication restriction: None

REMARKS ON SENTENCE

This is a matter that was heard remotely by me from Wagga Wagga where both parties were in Sydney.
The offender pleaded guilty before a Magistrate on 4 June 2020 to one count, namely:

“That (he) on or about 30 June 2019 at Manly in the State of New South Wales, while in company of William McManus and Michael Nichols caused grievous bodily harm to Ryan Davies being reckless as to causing actual bodily harm to him”.

The plea of guilty was maintained at the sentence hearing before me on 22 October 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence is 14 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of that offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the…

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 Foster

Details

AGLC: R v Foster [2020] NSWDC 648
Case: [2020] NSWDC 648
Decision Date: 29 October 2020

CaseChat Overview and Summary

In the matter of the Regina versus Foster, the appellant faced charges for an incident of grievous bodily harm committed in the company of another individual. The case was adjudicated in the Supreme Court of Queensland. The appellant, along with a co-defendant, was involved in an altercation that resulted in significant injuries to the victim. The appellant entered a plea of guilty to the charge, which was accepted by the court.

The primary legal issues before the court were the appropriate sentencing principles to apply in light of the plea of guilty and the need to consider both general deterrence and any special circumstances of the case. The court was required to weigh the appellant's early guilty plea against the gravity of the offence, and also consider any mitigating factors or aggravating circumstances that might influence the sentence. The court had to determine an appropriate sentence that reflected the seriousness of the crime while also taking into account the plea of guilty.

The court, in its judgment, recognised the appellant's early guilty plea as a mitigating factor, acknowledging that it demonstrated an acceptance of responsibility and a desire to avoid a trial. However, the court also considered the severity of the injuries inflicted on the victim and the impact on the victim's life. The court found that a custodial sentence was necessary to ensure general deterrence and to uphold the community's standards of conduct. After balancing all relevant factors, the court sentenced the appellant to imprisonment for a term of two years and nine months, with a non-parole period of one year and six months.

Orders

Orders of the court

Sentenced to imprisonment for 2 years 9 months from 29 October 2020, with non parole period of 1 year 6 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Foster [2020] NSWDC 648

Most Recent Citation

R v Nichols [2021] NSWDC 661

Cases citing this decision · 1 of 1 shown

R v Nichols
[2021] NSWDC 661 Para 5

…ho was sentenced by me to a total sentence of 2 years 9 months imprisonment with a non-parole period of 18 months on 29 October 2020 - see R v Foster [2020] NSWDC 648.…

View all 1 citing cases →

Cases cited in this decision · 27 of 27 shown

Dungay v R
[2020] NSWCCA 209 Para 33

…However, on the issue of the offender’s juvenile record, there is of course the decision of the Court of Criminal Appeal in Dungay v R [2020] NSWCCA 209, especially at [91]-[97]. Noting the age of the matters recorded in the Children’s Court those matters must be ignored for the purpose of this matter and the offend…
Valentine v R
[2020] NSWCCA 116 Para 105

…issue to be considered in all sentence matters involving a sentence of full time custody. I note and take into account the decision of Valentine v R [2020] NSWCCA 116 at [59]-[62].…
Karout v The Queen
[2020] HCASL 56 Para 96

…The High Court of Australia has refused Special Leave on the papers in both Fangaloka and Karout v R [2019] NSWCCA 253 – see [2020] HCASL 12 and [2020] HCASL 56 respectively. Essentially the doctrine of precedent requires that I accept that those are (at the time of this decision) the relevant and appropriate auth…
Karout v R
[2019] NSWCCA 253 Para 96

…The High Court of Australia has refused Special Leave on the papers in both Fangaloka and Karout v R [2019] NSWCCA 253 – see [2020] HCASL 12 and [2020] HCASL 56 respectively. Essentially the doctrine of precedent requires that I accept that those are (at the time of this decision) the relevant and appropriate author…
R v Murphy
[2019] NSWDC 635 Para 80

…ct Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner [2019] NSWDC 8 (Judge Hatzistergos) and R v Murphy [2019] NSWDC 635 (Judge Buscombe).…
R v Fangaloka
[2019] NSWCCA 173 Para 95

…C informed me that the controversy surrounding s 66(1) of the Crimes (Sentencing Procedure) Act and the series of authorities including R v Fangaloka [2019] NSWCCA 173 has not been resolved and that the issue was recently and once again litigated in the Court of Criminal Appeal. As a first instance sentencing judge…
R v Steven Turner
[2019] NSWDC 8 Para 80

…ed three decisions from my colleagues on the District Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner [2019] NSWDC 8 (Judge Hatzistergos) and R v Murphy [2019] NSWDC 635 (Judge Buscombe).…
Tepania v The Queen
[2018] NSWCCA 247 Para 23

…However, in this matter there is a complicating factor to the assessment of the objective seriousness. Johnson J in Tepania v R [2018] NSWCCA 247 at [112] said:…
R v Christopher Michael Hunt
[2018] NSWDC 256 Para 80

…A 67 and Fenech v R [2018] NSWCCA 160. I have considered three decisions from my colleagues on the District Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner [2019] NSWDC 8 (Judge Hatzistergos) and R v Murphy [2019] NSWDC 635 (Judge Buscombe).…
Fenech v R
[2018] NSWCCA 160 Para 80

…I have considered the Court of Criminal Appeal decisions of Stevens v R [2017] NSWCCA 216, Davis v R [2018] NSWCCA 67 and Fenech v R [2018] NSWCCA 160. I have considered three decisions from my colleagues on the District Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner…
Davis v R
[2018] NSWCCA 67 Para 80

…I have considered the Court of Criminal Appeal decisions of Stevens v R [2017] NSWCCA 216, Davis v R [2018] NSWCCA 67 and Fenech v R [2018] NSWCCA 160. I have considered three decisions from my colleagues on the District Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner…
Stevens v R
[2017] NSWCCA 216 Para 80

…I have considered the Court of Criminal Appeal decisions of Stevens v R [2017] NSWCCA 216, Davis v R [2018] NSWCCA 67 and Fenech v R [2018] NSWCCA 160. I have considered three decisions from my colleagues on the District Court namely R v Christopher Michael Hunt [2018] NSWDC 256 (Judge Mahony SC), R v Steven Turner…
SS v R
[2016] NSWCCA 197 Para 91

…ourt of Criminal Appeal was dealing with offending contrary to s 35(2) of the Crimes Act. I also note the observations of the Chief Justice in SS v R [2016] NSWCCA 197 at [61]ff.…
Hoskins v R
[2016] NSWCCA 157 Para 104

…bmissions relating to the bail conditions were such as to put that the principles in decisions such as R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157 (back dating of sentence because of onerous bail conditions) were enlivened.…
Siddiqi v The Queen (Commonwealth)
[2015] NSWCCA 169 Para 33

…r the purpose of this matter and the offender be dealt with as a person of prior good character. Indeed given the authority of Siddiqui v R (Cth) [2015] NSWCCA 169 the record may not be admissible for any purpose.…
Brown v R
[2014] NSWCCA 215 Para 88

…nt”. In dealing with statistics I note the decision of Hili & Jones v The Queen [2010] HCA 45 and more recently the decision of Brown v The Queen [2014] NSWCCA 215 where Garling J (Beazley P, Hulme J agreeing) said at [80]-[81]:…
MB v R
[2013] NSWCCA 254 Para 69

…ng persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]. [104] This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the p…
R v Anderson
[2012] NSWCCA 175 Para 104

…berty. I did not understand the submissions relating to the bail conditions were such as to put that the principles in decisions such as R v Anderson [2012] NSWCCA 175 and Hoskins v R [2016] NSWCCA 157 (back dating of sentence because of onerous bail conditions) were enlivened.…
AI v R
[2011] NSWCCA 95 Para 69

…d in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]. [104] This Court has emphasised that the principles of general deterrence and denunciation of crimes serve…
Hili v The Queen
[2010] HCA 45 Para 40

…not numerical equivalence but rather consistency in the application of relevant legal principle: Hili v The Queen; Jones v The Queen [2010 HCA 45; 242 CLR 520at [48]-[49]; Barbaro at [40]. [81] In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are…
McCullough v R
[2009] NSWCCA 94 Para 22

…has been made clear in a number of authorities - particularly R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] per Howie J and McCullough v R [2009] NSWCCA 94 at [37] per Howie J - offences such as the matter presently under consideration are result offences and generally the more serious the injuries the m…
R v Mitchell; R v Gallagher
[2007] NSWCCA 296

…ugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to cr…
R v McNaughton
[2006] NSWCCA 242 Para 32

…criminal history must be one that would enliven the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465. See also R v McNaughton (2006) 66 NSWLR 566. The record of the offender simply cannot enliven those principles, particularly given his age. I have dealt with that submission as it…
R v AEM
[2002] NSWCCA 58 Para 92

…This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].”…
Cheung v The Queen
[2001] HCA 67

…82] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”…
Veen v The Queen (No 2)
[1988] HCA 14 Para 32

…dure) Act to be enlivened the criminal history must be one that would enliven the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465. See also R v McNaughton (2006) 66 NSWLR 566. The record of the offender simply cannot enliven those principles, particularly given his age. I have d…
Neal v The Queen
[1982] HCA 55

…stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67…

Legislation cited in this decision · 1

Crimes Act 1900 (ACT)
1 mention (from Para 83)

Medium Neutral Citation:	R v FOSTER [2020] NSWDC 648
Hearing dates:	22 October 2020
Date of orders:	29 October 2020
Decision date:	29 October 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to imprisonment for 2 years 9 months from 29 October 2020, with non parole period of 1 year 6 months
Catchwords:	CRIME – grievous bodily harm in company – SENTENCING – relevant factors on sentencing – plea of guilty - general deterrence – special circumstances
Legislation Cited:	Crimes Act 1900 Children (Criminal Proceedings) Act, 1987 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Brown v The Queen [2014] NSWCCA 215 Davis v R [2018] NSWCCA 67 Dungay v R [2020] NSWCCA 209 Fangaloka v The Queen [2020] HCASL 12 Fenech v R [2018] NSWCCA 160 Hili & Jones v The Queen [2010] HCA 45 Hoskins v R [2016] NSWCCA 157 Karout v R [2019] NSWCCA 253 Karout v The Queen [2020] HCASL 56 Locke v R (2010) 207 A Crim R 34 McCullough v R [2009] NSWCCA 94 R v Anderson [2012] NSWCCA 175 R v Christopher Michael Hunt [2018] NSWDC 256 R v Dodd (1991) 57 A Crim R 349 R v Fangaloka [2019] NSWCCA 173 R v Loveridge (2014) 243 A Crim R 31 R v McNaughton (2006) 66 NSWLR 566 R v Mitchell & Gallagher (2007) 177 A Crim R 94 R v Murphy [2019] NSWDC 635 R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) R v Osenkowski (1982) 5 A Crim R 394 R v Steven Turner [2019] NSWDC 8 SS v R [2016] NSWCCA 197 Stevens v R [2017] NSWCCA 216 Tepania v R [2018] NSWCCA 247 Valentine v R [2020] NSWCCA 116 Veen v The Queen (No. 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (for the Crown) Lachlan Foster (Offender)
Representation:	Counsel: Mr P Boulten SC (for the Offender) Solicitors: Mr S Amvrazis (for the Crown)
File Number(s):	2019/206512
Publication restriction:	None