R v Foxman

[2024] NSWDC 688

District Court

New South Wales

Medium Neutral Citation:

R v Foxman [2024] NSWDC 688

Hearing dates:

16-18 December 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See paras [102]-[103].

Catchwords:

CRIME – SENTENCE – Entering a dwelling house with intent to commit a serious indictable offence, AOABH, in circumstances of aggravation: armed with baseball bat – ABH was a small wound requiring 3 stitches – Disputed facts hearing – Disputed facts decided in favour of offender – Whether s 10 available to offender – 55 year old man of prior good character – No conviction recorded – 2 year CRO.

Legislation Cited:

Crimes Act 1900, ss 35(4), 112(2), 556A

Crimes(Sentencing Procedure) Act 1999, ss 10, 21A(2)(eb)

Cases Cited:

RvNguyen [2002] NSWCCA 183 at [50]

R v Paris [2001] NSWCCA 83 at [42], [48]-[49]

R v Piccin (No 2) [2001] NSWCCA 323 from [20]

Stevens v Regina [2017] NSWCCA 216 at [40]-[41]

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (NSW)
Offender – Jeffery Alan Foxman

Representation:

Counsel:
Crown – Mr Borosh, N.
Offender – Mr Holles, F.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Offender – PK Lawyers

File Number(s):

2022/00280224

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Jeffery Alan Foxman stands for sentence as a consequence of pleading guilty to a charge contrary to s 112(2) of the Crimes Act 1900. The form of pleading is this:

On 14 September 2022 at St Ives, he did enter the dwelling house of Shannon Nicholson situated at 73 Warrimoo Avenue, St Ives with intent to commit a serious indictable offence therein namely assault occasioning actual bodily harm in circumstances of aggravation, namely he was armed with an offensive weapon, namely, a baseball bat.

That offence carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period.

2. When considering that offence, the offender asks me to take into account on a Form 1 an offence contrary to s 35(4) of the Crimes Act 1900. That offence can, in short, be described as reckless wounding. The formal averment in the Court Attendance Notice is that on 14 September 2022 at St Ives he did wound Shannon Nicholson, being reckless as to causing him actual bodily harm. That is an offence contrary to s 35(4) of the Crimes Act 1900. The maximum penalty for that offence is 7 years imprisonment. Parliament has prescribed a standard non-parole period of three years, which I would have to impose if that crime stood alone, and the offender was found guilty after a trial, and the objective seriousness of the complaint was in the mid-range.

3. This is the third day that the matter has been before me. The parties were unable to reach an agreement as to all the relevant facts. Exhibit A, the Crown sentence summary, contains a “statement of agreed and disputed facts”, the disputed facts being given in red.

Undisputed…