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 Facts

4. The offender is Jeffery Alan Foxman. The victim is his neighbour Shannon Nicholson who resides at 73 Warrimoo Avenue, St Ives. There has been significant animosity between the offender and the victim over an extended period of time.

5. On 14 September 2022, between 8.30am and 8.45am, the victim was driving and saw the offender on Warrimoo Avenue near Toolang Road, St Ives. The victim then continued back home and parked his vehicle in the driveway. The garage door was open.

6. A passer-by saw the offender run across the road towards Warrimoo Avenue, St Ives, holding a baseball bat with both hands behind his back with the baseball bat in line with his spine. He described the baseball bat as aluminium silver in colour with a black handle and red/orange writing. He described it as children sized, as, when he had it against his back, it went from the base of his neck to his lower back.

7. The victim then noticed the offender at the garage door. The victim’s car was parked outside the garage door, and part of the incident was captured on the dash cam footage. The footage shows the offender holding the bat behind his back.

8. The victim pressed a button for the garage door to close as he was scared and intimidated by the offender’s standing there. The offender remained outside the garage door remonstrating with the victim for about 20 seconds with the baseball bat behind his back, and the offender then went into the garage and ran at him with the baseball bat whilst the garage door commenced to close. The victim tried to go up the stairs into the backyard, but he was not able to do so.

9. The offender swung the baseball bat from over his shoulder and hit the victim on his lower leg. He also hit him on his upper left shin. The offender hit the victim at least three to four times, and each time he brought the baseball bat back to his shoulder and then swung it at the victim with full force. At one stage, he took a swing at his head but the victim blocked it. The victim tried to run away to the other side of the garage. The offender followed him and hit him on the right as the victim tried to jump away. The offender aimed for the victim’s upper body section and the victim tried to protect himself by using his forearms. The offender stopped for a split second and the victim ran to the other side of the garage to the control panel to open the garage door in the hope that the offender would leave.

10. The offender’s son appeared by the door and pushed the garage door back up just as it was about to close. The offender and his son then left. The victim dropped to the ground and contacted “000”. He was in pain and in shock.

11. At about 9am, police arrived and observed the victim lying on the garage floor in pain. Blood was coming from his left shin and he had bruising and swelling on his right foot. The victim attended Hornsby Hospital to be assessed. The discharge summary noted that he had:

“Swelling in his right ankle but was neurovascularly intact. He had a small 2 centimetre laceration on his left mid-shin which was clean and sutured with 3 sutures under aseptic technique.”

He had x-rays and a CT scan on his right foot, but no fractures were identified. The victim also sustained bruises to both forearms and on his left outside upper arm.

12. On 19 September 2022, the offender was arrested.

13. A photograph on page 3 of the fact sheet shows an image of a swollen right foot and also an image of an open wound on the left shin, which I assume was the wound that was closed with the three stitches.

Witnesses

14. Mr Nicholson was called in the Crown case to give evidence about the disputed facts. There is no suggestion that he did not make a complete and adequate recovery from his injuries. In the defence case, evidence was adduced for the offender from his son Zac, who was 16 at the time, from the offender’s wife, Mrs Pani Lisa Foxman, Mr Stephen Jonathan Arenson and Mr Ross Lampris Vouloumis.

Background

15. It is abundantly clear that for many years, antecedent to the events just described, that there was bad blood and unneighbourly behaviour between the “victim”, the complainant, Mr Nicholson, and the offender.

16. According to Mr Nicholson he had lived at 73 Warrimoo Avenue, St Ives for about “for 16 years” which indicates he moved in in around 2008. Mr Foxman gave evidence that he had lived at his address in Carbeen Avenue, St Ives for about 14 years, which would indicate that he moved in around 2010. Mrs Foxman gave another estimate of time as to when the Foxman’s moved into Carbeen Avenue, but I will remain with the estimate given by Mr Foxman.

17. It is important to understand some of the local geography. Warrimoo Avenue runs essentially from north to south. However, after crossing Toolang Road it makes a curve further to the west, but then essentially returns to its north south general direction. The northern side of Toolang Road is the boundary between the suburbs of St Ives Chase to the north and St Ives to the south. The general direction of Warrimoo Avenue follows the general direction of Cowan Creek Reserve. In the last section of Warrimoo Avenue, that is, the section to the south, Warrimoo Avenue runs immediately to the east of Cowan Creek, but my street directory suggests that there is a line of residences on the western side of Warrimoo Avenue which divides the street from Cowan Creek Reserve. Carbeen Avenue in which the offender and his family resided runs from north to south. The major part of Carbeen Avenue runs roughly parallel to Warrimoo Avenue in that part that runs south, after the curve to the west. Carbeen Avenue and Warrimoo Avenue intersect at a T intersection as Warrimoo Avenue is sweeping to the west before turning south again.

18. Mr Nicholson lives as I said at 73 Warrimoo Avenue, and the offender and his family were living in Carbeen Avenue, and their properties met: the rear of Mr Foxman’s premises joined one side of Mr Nicholson’s residence. The general description provided to me indicates that there may be a residence on the corner of Carbeen Avenue and Warrimoo Avenue, but that is occupied by somebody other than Mr Nicholson or Mr Foxman. That allows the two properties to join around the property on the corner.

Previous Interactions between Victim and Mr Foxman

First Interaction

19. There have been interactions from between the Foxmans and Mr Nicholson over a number of years. The first is documented in Exhibit C. It concerns events which occurred on 14 November 2018. Mr Nicholson was charged with two offences. The first was that on 14 November 2018 between 9.30pm and 10.27pm he assaulted Sharna Foxman, one of the daughters of Mr Foxman and his wife.

20. The other charge arising from the same incident was that between the same times on the same day, Mr Nicholson intentionally or recklessly damaged property, namely, exercise equipment at the property of Mr Foxman. Those proceedings were heard in the Local Court at Hornsby. There is a police fact sheet in Exhibit C.

21. After reciting the respective addresses of Mr Foxman and Mr Nicholson, the facts sheet records that the Foxman’s rear boundary fence aligned with the southern boundary of the Nicholson’s property. The facts then continue:

“At about 9.30pm on Thursday 15 November 2018 the victim was in her backyard exercising on an electronic exercise Eclipser located towards the rear of the yard under a pergola. At the time, the victim had music playing through a speaker which she states was not loud.

The victim heard a female voice scream out from behind the back fence ‘Turn the fucking music down, it’s almost 10 o’clock.’ The victim states that she turned the music down even further and continued to exercise.

A short time later the victim felt water on her back. She turned and saw a stream of water which appeared to be coming from a hose from over the rear fence. The stream of water continued for approximately five minutes, completely soaking the victim’s clothing. The victim states that the water hit the roof of the pergola and also the exercise equipment below. The victim sent her father a text message [who was inside the house]. The victim’s father also came outside and saw a stream of water coming from [over] the rear fence.

As a result, all three machines sustained water damage rendering them inoperable.

Police attended the victim’s home a short time later and obtained an electronic statement from the victim and her father.

Police then attended 73 Warrimoo Avenue, St Ives. The front gate was answered by the accused [Mr Nicholson]. Police requested to speak with the female occupant of the house. The accused asked why, and he was told that it related to water being sprayed over the fence into the neighbour’s house causing damage to their property. The accused stated ‘That was me.’ The accused was then cautioned and after which he stated that he did not wish to say anything further.”

22. The proceedings were listed for hearing in the Local Court on 21 February 2020. A Conditional Release Order (“CRO”) was made for a period of 12 months commencing on that day and concluding on 20 February 2021. The records are unclear as to whether a conviction was recorded in respect of the charge of destroying or damaging property. However the Local Court imposed a fine of $3,300 and ordered Mr Nicholson to pay compensation of $9,395. According to Exhibit 9, the last payment of the compensation was made on 16 September 2022, two days after the events with which I am concerned.

Second Interaction

23. The next interaction recorded in Exhibit C occurred on 25 July 2022, a little less than three months before the matters with which I am concerned. This relates to COPS event number E89779752. The narrative details are these:

“At 6pm on Monday, 25 July 2022, Jeff Foxman was walking towards his motor vehicle on the road of his home address when Shannon Nicholson wearing a black face mask, black hoodie jumped out of nearby shrubs and bushes and confronted Foxman. Nicholson said ‘Let’s go,’ and Foxman said ‘I can’t[,] I’ve got stitches in[.]’ Nicholson then walked away to his motor vehicle which he unlocked and entered[.] Foxman then called police.”

24. The narrative then goes on to record attempts that the police made to interview both Mr Foxman and Mr Nicholson. Mr Foxman merely wanted police to speak with Mr Nicholson, and he only wanted a record made of the event. Police tried to speak with Nicholson on 21 August 2022 but did so unsuccessfully. They made contact by telephone on Monday, 22 August 2022, and in the police interaction with Mr Nicholson, Mr Nicholson denied any involvement in the incident that was alleged to have occurred.

25. Mr Foxman gave evidence of this event from the witness box on oath, and I am prepared to accept that it did occur. As far as Mr Foxman was concerned, the invitation made by Mr Nicholson was in fact to have a fight, which is what caused him to point out that he did not wish to do so, because he had had recent surgery requiring stitching.

Third Interaction

26. The other interaction referred to in Exhibit C is alleged to have occurred after the events now in question, and I shall ignore it. It is merely a complaint by Mr Foxman that someone had damaged his motor vehicle, and Mr Foxman believed it may have been Mr Nicholson. There is no evidence, of course, that that actually occurred.

Other Interactions

27. Suffice it to say that according to Mr Foxman, there had been unneighbourly conduct prior to 14 November 2018. For example, Mrs Foxman maintained that because of prior interaction with Mr Nicholson, and probably his wife, she had been afraid to go into her backyard alone because of a fear of being abused.

28. She also gave evidence, as did Mr Foxman, of events occurring of damage to property in the backyard, but where there was no evidence as to who caused the damage, but both Mr Foxman and his wife believed that it had been caused by Mr Nicholson. That belief, of course, carries the matter nowhere. However, Mrs Foxman gave evidence that Mr Nicholson was fond of “playing chicken” with her when she was driving by crossing onto the incorrect side of the carriageway to pretend that he might cause his vehicle to have a head-on collision with her vehicle, but then pulling out of that manoeuvre.

29. She also gave evidence that he would often stare at her when she was at the local shops, and indicated his craning his neck forward but keeping his head up, staring at her. When asked how she felt about his conduct, she said that he “terrorised” her, that he was often staring at her before he walked away from her, and that led to her feeling intimidated. The word “intimidated” is my own word rather than what she said, but the indication that she made was wholly consistent with that.

30. Zac Foxman, the son of Mr and Mrs Foxman, gave evidence that when he was riding his bicycle in the local area, he would often be “tailgated” by Mr Nicholson driving close behind him. The word “tailgated” is my own word rather than his, but clearly that was the manoeuvre that Mr Nicholson was adopting, according to Zac. It is clear from the evidence of Mrs Foxman that Zac had complained to her in the past about Mr Nicholson’s engaging in that manoeuvre with Zac.

31. A telling piece of evidence on this issue was that of Mrs Foxman, who, when asked whether she had considered moving from their address in Carbeen Avenue, said that that had been considered, but they were not able to afford such a move.

Disputed Facts of the Current Crime

32. I return to the facts of the day. What I omitted to cite from the agreed fact 3 is the following material:

“He saw the offender walking back towards the victim’s house and observed that he was gesturing with hand signals. The victim pulled his vehicle over and had his window down to speak with him. They had a conversation and at some stage the victim said ‘Come on man, I am almost 50 years of age’. The offender said ‘I am gonna get ya’.”

33. According to the sketch plan, Exhibit D, on the morning of 14 September 2022, Mr Foxman and his son Zac, who was then a schoolboy aged 16, had walked from their home to Toolang playing field, which is on the northwest corner of the intersection of Toolang Road and Warrimoo Avenue. That intersection contains a roundabout. Mr Foxman and his son had gone to Toolang playing field to play some baseball. It was, perhaps, the offender throwing balls at his son for his son to practice his batting.

34. When they had finished that activity, the offender sent his son on ahead of him to return to their home in order for Zac to be able to get to school on time. It is to be noted that there was no footpath on the eastern side of Warrimoo Avenue. However, there was a footpath on the western side of Warrimoo Avenue. Mr Nicholson had driven his vehicle from his home north along Warrimoo Avenue and, when he reached the roundabout at Toolang Road, turned right around the roundabout. However, when he first entered Toolang Avenue, he brought his vehicle to a stop.

35. Initially, Mr Foxman was on the eastern side of Warrimoo Avenue, about 10 metres north of the roundabout, walking in a southerly direction, that is, towards the roundabout. Mr Nicholson then brought his vehicle to a stop, as I said, immediately he turned around the roundabout and entered the eastern side of Toolang Road.

36. However, it is clear from the evidence of Mr Arenson, a neighbour, that he was present at the time. He had been riding a bicycle heading north along Warrimoo Avenue on his way to St Ives Chase. He saw Mr Foxman with his son walking on Warrimoo Avenue. He was speaking with Mr Foxman, who was a friend. He then gave evidence that a white van pulled up, and the occupant of the van was becoming aggressive. He said that the occupant of the van, obviously Mr Nicholson, said, “I'm coming to get you,” to Mr Foxman. Mr Arenson described the conduct of Mr Nicholson as being “extremely aggressive”. Mr Arenson did not wish to be there.

37. He then got back on his bike and rode his bike northwards. He went on to say that three or four hours later on that day, he received a phone call from Mr Foxman apologising to Mr Arenson for the conduct which he observed between Mr Foxman’s neighbour and Mr Foxman. In cross-examination, Mr Arenson conceded that he did not know who the driver was and had never met or known Mr Nicholson before, nor had he had any dealings with him. He was confident that the words used by Mr Nicholson were, “I'm coming to get you.”

38. It is clear from what he went on to say in cross-examination that, by that time, Zac Foxman was not with his father, and prior to the arrival of Mr Nicholson in his vehicle, that he [Mr Arenson] was having a friendly chat with Mr Foxman. As far as Mr Arenson could recall, the interaction was when Mr Foxman and Mr Nicholson were about 10 metres apart. He thought that the interlude in question occurred over a period of 40 seconds, being interrupted by his leaving because he did not wish to be present at what he believed to be an unseemly, aggressive exchange between Mr Foxman and Mr Nicholson.

33. I have absolutely no reason whatever not to accept the evidence of Mr Arenson. He did not appear to me to be partial to Mr Foxman, albeit that Mr Foxman he would describe as a friend. He clearly did not wish to be present when some nastiness was occurring between a friend he knew and a man he did not. In the circumstances, I accept the disputed facts in paragraph 3. It appeared to me highly likely that what Mr Foxman said is correct, and what he said is corroborated by Mr Arenson.

34. In cross‑examination, Mr Foxman said that the closest the two men got at the roundabout was either one or one and a half metres between the two. He then walked away. Later on, he admitted that he “snapped”. What happened is that, as he was walking home, he made a call to his son. However, before that I should indicate that the evidence is that Mr Nicholson then, after stopping his vehicle where he did, then drove on onto Toolang Road and came back and turned left and then returned to his own residence in Warrimoo Avenue. Mr Nicholson probably drove past the offender as the offender was walking on the western side of Warrimoo Avenue on the footpath.

35. It is clear that by the time the offender reached the vicinity - and by that I mean the close vicinity - of Mr Nicholson’s home, Mr Nicholson’s van was parked on his driveway and the roller door to his garage was open. Prior to reaching a position outside Mr Nicholson’s home, the offender made the call to his son. Zac returned whence he had gone, and he met his father roughly on the western side of Warrimoo Avenue opposite Mr Nicholson’s home. The offender took the baseball bat from his son and then strode quickly across Warrimoo Avenue to confront Mr Nicholson, who was in the back of his garage.

36. According to Mr Nicholson, he was in the back of his garage performing exercise to warm up, because he was going to a Pilates class which was to commence at 10am. There is dash cam footage, which is Exhibit E. The first sequence in the dash cam footage was the second in time. The second footage was the first in time. The first in time footage shows the offender meeting with his son across the road from Mr Nicholson’s residence. It shows the offender taking the baseball bat from Zac. It then shows the offender crossing over the road to reach Mr Nicholson’s property and to walk down the right-hand side of Mr Nicholson’s van and stop at the entrance to the garage and have a conversation with Mr Nicholson.

37. According to Mr Foxman, he told Mr Nicholson to “leave us the fuck alone” and perhaps similar words to the same effect. He referred in his evidence to being distraught by the constant barrage of bullying that he and his family had received over the years. The second section of the film shows the offender entering into the garage of Mr Nicholson, who is at the back of the garage, and entering the garage swiftly, and then using the bat to strike Mr Nicholson a number of times.

38. It is clear that he kept the bat secreted behind his back until the time he entered the garage to confront Mr Nicholson, the victim of the assault. Mr Foxman made it clear that he snapped. I accept that he did. However, he believed that he “snapped” when he telephoned his son to return to him and to bring the baseball bat with him.

39. The fact that he made that call does not, in my view, indicate that he snapped then. Rather, that he had made a decision, a conscious decision, to confront Mr Nicholson. I am not persuaded beyond reasonable doubt, however, that that was a decision made to assault Mr Nicholson, but rather a decision to confront him, and he may have decided at that time to take the baseball bat with him in case there was any struggle between them. However, he clearly snapped during the conversation with Mr Nicholson when Mr Nicholson was at the back of the garage and Mr Foxman was at the front. The snapping occurred when he decided to enter the garage and take to Mr Nicholson with the bat. One of the paragraphs in the statement contained in Exhibit A was that numbered 10, which I have omitted because it is disputed. The disputed fact was this:

“During the incident, the victim said, ‘Please leave me alone’, ‘We are neighbours, please let’s just get along’.”

46. I do not accept that Mr Nicholson said those words or any words to a similar effect. The whole of the evidence must be borne in mind. What was said not only by the offender and his wife and son, but what was said, for example, by Mr Arenson and what was later said by Mr Vouloumis, another neighbour, who himself had had adverse exchanges with Mr Nicholson. At the end of paragraph 11, what I omitted to cite was the following:

“The offender yelled aggressively, ‘I'm going to send the boys around to finish the job’ and ‘They’re going to get you. They’re going to kill you.’”

47. This was a subject of cross-examination of Mr Nicholson, and, of course, of the offender. Mr Nicholson often ascribed to the offender words to the effect that he had some group of friends, ‘boys’, or a ‘gang’ whom he would send around to finish off Mr Nicholson. Those words, in my estimate, are words which Mr Nicholson probably used himself towards Mr Foxman, and not the other way around.

48. The offender’s case, essentially, is that he was provoked by the conduct of Mr Nicholson over many years to do what he did, which was let anger run away with his reason, causing him to snap when he was at the garage door and assault Mr Nicholson with the baseball bat. I do not wish to dwell overly on some of the views of the offender and his family towards Mr Nicholson, but I should say that I formed a favourable view of Mrs Foxman and of Zac, and a favourable view of Mr Arenson and Mr Vouloumis, who gave evidence yesterday.

49. Mr Vouloumis, like Mr Foxman and his family, lived in Carbeen Avenue. He said that he got on extremely well with his neighbours, who looked after each other, and he appears to have had a good relationship with most of his neighbours. He said at the current time, he was at peace with Mr Nicholson, but they had had incidents in the past. The incidents appear to have been largely concerned about “green waste”, things such as grass clippings, leaves, et cetera, and there was an area that he described as a common area where this green waste was piled up, but Mr Nicholson did not like others piling up the leaves in this “common area”, but was prone to throwing them back into the backyards of those who piled them up in the common area.

50. He accepted that there had been incidents with Mr Nicholson of an unsavoury character on about three or four occasions concerning this “green waste”. On one occasion, he was certain that Mr Nicholson had offered to fight Mr Vouloumis, but he did not wish to do so. The evidence of Mr Nicholson was, in my view, unconvincing, and he came across as a man who might easily be confrontational.

51. One area which has been perhaps overplayed a little in other histories that the offender has given, for example, to Dr Olav Nielssen, was the suggestion that Mr Nicholson bore some spite towards Mr Foxman because Mr Foxman was Jewish. That caused some speculation to be made in the history given to Dr Nielssen which I do not find at all helpful, but I do accept that at times, as Mr Foxman said, Mr Nicholson referred to him as a “fucking Jew”. I am not as concerned about the racial slur, as I am about the animosity which he displayed to Mr Foxman.

52. The fact that the offender snapped under provocation after years of unsavoury interaction between himself and Mr Nicholson is understandable. However, going on to assault him wielding a baseball bat is certainly not acceptable. We do not permit under our law vigilantism, people taking the law into their own hands to enforce some right that they believe they might have, or to enforce the law outside the processes of the law, by taking to people they believe to be ne’er-do-wells who require to be chastised, to task for their misbehaviour. The Court and the law do not condone people taking the law into their own hands by inflicting punishment on those that they believe should be punished.

53. Exhibit 7 is a statement made by Shannon Nicholson on 15 September 2022. Exhibit 8 is a further statement made by Mr Nicholson on 21 June 2023. In Exhibit 8, the final paragraph is this:

“Prior to the assault there were two occasions in which Jeff [Foxman] verbally threatened me in 2022. In early 2022, I am unable to remember exactly when, I was out the front of my house when I heard Jeff shout at me from across the road. He said words to the effect of ‘I'm going to get you, you’re toast’. About three months later I was out the front of my house again when I heard Jeff shout words to the effect of ‘I'm gonna send the boys round to get you... I am gonna get you, you are a dead man’. On one of these occasions, I looked over and saw Jeff cross the road after he shouted at me, the other occasion I had noticed Jeff across the road before he shouted at me.”

54. In cross-examination, Mr Nicholson was questioned about an occasion in July 2022 when Mr Foxman was outside his house watering and Mr Nicholson challenged Mr Foxman to a fight. That, as far as I can remember, was denied by Mr Nicholson. However, one can see in his statement the counter being made that when Mr Foxman was outside Mr Nicholson’s house, Mr Nicholson again made a threat of sending his “boys” around, and that Mr Nicholson would become a “dead man”.

55. As I said earlier today, I believe it highly unlikely that those words attributed by Mr Nicholson to the offender were words that the offender used, but more likely words that Mr Nicholson used to the offender. Furthermore, there is no explanation in Mr Nicholson’s evidence as to who this gang of people might be that the offender had the ability to summon up to come to threaten him. There is no reason given as to why Mr Nicholson could believe that the offender was in any such position. It makes Mr Nicholson’s evidence, in my view, more incredible.

Personal Circumstances

56. I turn then to the offender’s personal circumstances, which can largely be gleaned from the report of Dr Olav Nielssen, who interviewed the offender on 11 December 2023 and prepared a report bearing date 28 February 2024. The “psychiatric history” and other forms of history taken by Dr Nielssen are these:

“Mr Foxman said that he was not aware of any family history of mental disorder, apart from his younger brother’s substance use disorder.

Mr Foxman described a good childhood, and said that he was his father’s favourite, and ‘his shadow’ at the family-run service stations. He said that he worked at the garage from an early age, and left school before the higher school certificate to start an apprenticeship as a mechanic with one of his father’s friends. He said that he completed a comprehensive training and was recognised as a capable diagnostician of problems in European-made cars. Mr Foxman reported becoming depressed after treatment for lymphoma, which was discovered soon after his father died, around the time of the financial problems arising from his younger brother’s addiction. He described the full syndrome of symptoms [of] depressed mood, made worse by the effect of medication taken with radiotherapy to the abdomen, and started treatment with antidepressant medication around that time.

He said that he saw a counsellor with an office in Coogee on several occasions, but said ‘I tried to live with it and push on... it’s half my problem’.

When asked about recent symptoms of depression, Mr Foxman said that he was aware of feeling severely depressed since being charged, with interrupted sleep, fatigue, negative ruminations, anxiety, and the loss of pleasure from life. He reported transient thoughts of suicide, but said ‘If I was a weaker person maybe... but I'm past that’.

He said that he occasionally took alprazolam (Xanax) left over from prescriptions provided to him around the time of his cancer treatment, but only took those tablets when he felt severely anxious, as the withdrawal of symptoms was also unpleasant.

He said that his general practitioner referred him to a psychologist at Frenchs Forest, Lisa Butler, who he has seen at intervals.

Mr Foxman denied ever experiencing the typical symptoms of schizophrenia-like psychosis, including hallucinations of voices or holding any beliefs he later recognised to be false. However, he said that he became quite suspicious during chemotherapy, when he thought it may have been the effect of high doses of corticosteroids. Mr Foxman said that he was normally a positive and energetic person, but did not describe distinct episodes of hypomania (sub-mania) with racing thoughts, decreased need to sleep, or unrealistically grand plans, and said that he had never been diagnosed with bipolar disorder.”

57. The doctor then pointed out that the lymphoma had been found in the duodenum and that that led to a section of the colon, and then there was need for a further resection of the colon because of diverticular disease. Some ten years ago, the offender had a transient ischemic attack which can be described as a mini-stroke. In recent times, there has been an unstable angina pectoris, which was found to be due to blocked coronary arteries, for which the offender had stents inserted prior to the interview on 11 December 2023.

58. Relevant to the offence now in question is a history that the offender gave to Dr Nielssen of having a serious shoulder injury in a motor cycle accident, an injury to a ligament in his right foot, and intermittent episodes of unexplained pain in his abdomen in the area where he had previously had radiotherapy. The shoulder injury is relevant, because that stopped the offender wielding the bat because it reduced his ability to use his left arm in wielding that implement.

59. The personal history taken by Dr Nielssen is this:

“Mr Foxman said he was the fifth of his parents’ six children. He said that his father was from Poland, and came to Australia via Siberia, and his mother was born in Australia, of Eastern European heritage. He said that his parents worked together in service stations in the eastern suburbs of Sydney. He said that his oldest sister had video shops but died from cancer, another sister that has lodges in Melbourne, an older brother has a waste disposal business, another older brother had a landscaping business, and his younger brother had a hotel with a loan guaranteed by their mother, which led to the forced sale of the property which had his mechanical workshop and a large financial loss.”

60. I should interpolate that the younger brother who had the hotel had a drug addiction which caused his business to fail, and that had been supported financially by the offender’s mechanical workshop business, and the failure of his brother’s business resulted in the forced sale of the offender’s business, which led to large financial loss. Dr Nielssen’s history then continues thus:

“He said that he grew up in Bellevue Hill, and attended the Bondi Yeshiva for primary school and Vaucluse High. He said that he completed part of his apprenticeship as a mechanic in Melbourne, and then with the mechanical change Ultra Tune, which provided comprehensive training in a range of locations.

Mr Foxman said that he started a car repair business in the workshop bought by his parents in Randwick specialising in European cars. He said that after the forced sale of that property he started tow truck and roadside assistance businesses and working on his own with a single tilt tray tow truck, resulting in greatly reduced income.

Mr Foxman said that he’s been married for 26 years, with three children, daughters now aged 22 and 20 and a son aged 16. He said that his oldest daughter is a paramedic in London, the next is studying nursing and his son is an apprentice auto-electrician.

He said that he worked very long hours and described his hobbies as his business and his children. He said that he had sent his family on holidays but tended to work through those breaks.

He said that over the years he has supported a number of charities in the Jewish community, as well as helping numerous friends and acquaintances, but had less time and was in more difficult financial circumstances in recent years.”

61. At some stage after the assault with which I am concerned, the offender obtained a tilt tray tow truck, with which he was working, but he went on to sell that vehicle because he realised that if he were convicted he would not be able to work in the tow trucking business. However, he is now working in roadside assistance, but there is a problem there to which I shall return.

62. The offender is very well-regarded in the community. There are four personal references before me. One is from Mr Gary Owen, who is a former detective senior constable of police with the Organised Crime Squad. His reference tells me that he has known the offender for about nine years. They first met in 2015 at the Ku-ring-gai Mini Wheels Training Club at St Ives Showground where Mr Owen’s children and perhaps Mr Foxman’s son trained and competed in motorcycle sports. Both Mr Owen and the offender were active members of that club. During their time together, they attended social weekend campouts. The reference from Mr Owen describes the offender as “a calm, friendly and happy disposition”. He went on to say this:

“On one occasion, circa 2018, Jeff contacted me and provided me with some information regarding mid-level drug dealing in the eastern suburbs of Sydney that he had become privy to and which he thought should be reported. I assessed the information and found it to be credible and submitted the appropriate intelligence reports for NSW Police to action. In that regard, I have always known Jeff to be an honest and community‑minded person.

Jeff has told me that he has pleaded guilty to an assault charge involving his neighbour. Jeff has explained the circumstances of the matter to me and he is very remorseful for his actions toward his neighbour and the shame it has brought not only to himself but also to his family.

Jeff is an extremely hard worker, always providing for his family and in the time that I have known Jeff, I have never known him to have ever been involved in any sort of violent conduct, his conduct on this occasion being completely out of character.”

63. Exhibit 4 is a reference from a Dr Niro Sivathasan, a plastic surgeon who says this of the offender:

“I have known Jeff Foxman for over a decade in various capacities, namely, I was his customer, he has been a former patient of mine, and, in recent years, as friends. Mr Foxman has contributed positively to society with his various businesses for which he has worked hard.

When Mr Foxman told me about the incident involving his neighbour, I was very much surprised because such behaviour was, in my opinion, out of character for Mr Foxman. Indeed, I have known Mr Foxman to be a considered, logical and patient individual.

Mr Foxman has reflected about the incident to me and has been remorseful. He has been disappointed with himself and he has, I understand, been making a conscious effort to be more aware of his emotions since then.”

64. Exhibit 5 is a reference from Rabbi Gad Krebs who, presently, is the college Rabbi at Moriah College. In it, he says this:

“I have known Jeff Foxman for well over ten years. Jeff was a committed member of the congregation that I led as a Rabbi.

I understand that Jeff has pleaded guilty to an assault charge involving his neighbour which unfortunately occurred after a series of events which led him to losing his self-control. Jeff is extremely sorry for his conduct toward his neighbour. Jeff has always been very generous with his time and money, giving free car services to various members in the community, including myself. He was a regular synagogue attendee and passionate about his community, and in any way that he could support it.

Jeff is a very passionate and protective family man and in the time that I have known him, I have never known him to ever have been involved in any type of violent conduct.”

65. Exhibit 6 is a reference from Dr Michael Grimm, a consultant gastroenterologist practising mainly at St. George Hospital at Kogarah. This is what Dr Grimm had to say:

“I have known Jeff Foxman as mechanic, patient and friend since 2000.

I understand he has pleaded guilty to an assault charge involving his neighbour. Jeff has explained the circumstances of the matter to me. He is very remorseful for these actions and the shame he has brought not only to himself but also to his family.

Jeff is an extremely conscientious worker whose greatest concern is always for his family. In the many years I have known him, I have never been aware of involvement in any sort of violent conduct. This behaviour has greatly surprised me and is completely out of character.

I feel I know him well enough to say I do not think he will ever re-offend.”

66. The offender can, therefore, be seen as a man who has contributed positively to our society, as a man who comes before this Court as one of prior good character. He has no criminal history whatever, and as a man who is a friend to many and has impressed them as a sober, upright citizen. I accept that this offence is completely out of character. I also accept that he is truly remorseful. That remorse was clear when he gave his oral evidence before me and is clear in every document that I have read.

67. As I have already mentioned, the offender has been seeing Ms Lisa Butler, a psychologist. Before me are two reports from her bearing the dates 23 February 2024 and 21 June 2024. She has been treating the offender since 5 February 2024 and, as at 23 February 2024, had completed three sessions with the goal of assisting the offender to regulate his emotions and to manage depressive symptoms.

68. In her report of 21 June 2024, she confirms that the offender has continued to attend sessions and was very responsive to treatment with positive results. She expressed the view that the offender was engaging well with the treatment despite the ongoing stress related to the current Court proceedings. She expressed the view in her second report that he is no threat to others and is better able now to regulate his emotions when under stress than he had been previously.

69. That brings me back to Dr Nielssen’s report. Dr Nielssen diagnoses a depressive illness. He expressed this opinion:

“The diagnosis of depressive illness was made from Mr Foxman’s account of symptoms amounting to the syndrome of depression, the history of long term treatment with anti-depressant medication, and aspects of his presentation during the recent interview.

Mr Foxman reported pervasively low mood, poor sleep, lack of appetite, fatigue, anxiety, withdrawal from company, and transient thoughts of suicide. There was a history of treatment for depression from around the time his father died, with both anti-depressant medication and counselling. At the time of the recent interview, Mr Foxman was assessed to be significantly depressed from his demeanour and the quality of many of his responses.

The possibility that Mr Foxman had some kind of neurocognitive disorder secondary to cerebrovascular disease was raised by the history of the mini-stroke, from which he believed he made a full recovery, and the recent discovery of significant coronary artery disease, which suggests the presence of vascular disease in other organs, including the brain. However, there was no obvious impairment in cognitive function, the clinical impression was that Mr Foxman was quite depressed. Cerebrovascular disease can manifest in behavioural changes, and the finding of abnormalities of brain structure can sometimes help explain atypical behaviour as well as obvious cognitive and neurological problems. However, Mr Foxman was understandably reluctant to undergo further medical investigation, given the anxiety caused by so many serious health problems.

Mr Foxman was not aware of any family history of depression and he reported a generally happy upbringing in a large family. The precipitants of his depressive illness appear to have been the death of [his] father, to whom he was close, treatment for what was, in effect, stage 4 lymphoma in the abdomen with radiotherapy and chemotherapy at a time that he had three young children, and the financial crisis triggered by his brother’s addiction which in effect wiped out his own successful business.

A further factor affecting Mr Foxman’s mood, state, and behaviour was his withdrawal from anti-depressant medication after many years of treatment which was accompanied by unpleasant physical symptoms and increased anxiety and depression. Depressed mood itself is often accompanied by increased irritability, especially in men, as well as pervasively negative and catastrophic thinking, which is the nexus between Mr Foxman’s condition and his behaviour.

Notwithstanding the circumstances of the assault in which it seems Mr Foxman armed himself, concealed the weapon and entered Mr Nicholson’s garage, he reported that his perception was that he was threatened with violence by Mr Nicholson, on a background of several years of documented harassment, and that he was at a physical disadvantage because of his smaller size, his injured shoulder and generally poor health.

There was no history of aggression or violence in any other situation, or any pattern of interpersonal conflict, and the circumstances appear to be the result of unique circumstances arising from the conflict with Mr Nicholson, that are unlikely to occur again. Substance use was not a factor, other than the psychological effects of the recent withdrawal from anti-depressant medication. Mr Foxman was assessed to have a low likelihood of similar offences or of any other offences.”

There was one further paragraph of Dr Nielssen’s report which I shall need to discuss a little later.

70. The Sentencing Assessment Report (“SAR”) dated 6 March 2024 tells me that the offender has been assessed at a low risk of reoffending according to the inventory used by Community Corrections. It recommended that the offender continue his treatment with his psychologist to address his mental health needs. The same treatment is recommended by Dr Nielssen. Over the last 20 years, I have read many reports of Dr Nielssen. He is well known to those who practise in criminal law and he has interviewed, assessed, and treated many patients, often with very severe mental illnesses. He knows the effect of incarceration on patients. The penultimate paragraph of Dr Nielssen’s report is this:

“Mr Foxman would find the experience of imprisonment to be particularly onerous when compared to most other prisoners, given his cultural background and the likely effect of recent world events on attitudes of the many prisoners of Arabic heritage, and also because of his own precarious family circumstances. He also has a range of medical conditions for which he would have reduced access to adequate standard of medical care.”

The last sentence is easily explained. It is often well accepted that the standard of health care that can be offered by Justice Health is not to the same standard as that standard available to members of the public who are not incarcerated.

Objective Seriousness

71. The Crown has submitted that the offence committed by the offender “falls just below the mid-range of objective seriousness”. The submissions on behalf of the Crown go on to comment on the Form 1 offence, that is, the reckless wounding which is at the core of the offender’s criminality. However, the Crown points out that a Form 1 offence is not to be taken into account in the assessment of the objective seriousness of the principal offence. Looking solely at the objective seriousness of the principal offence, I have to consider the fact that he entered the garage of Mr Nicholson with intent to commit the serious indictable offence of assault occasioning actual bodily harm, the circumstances of aggravation being armed with a baseball bat.

72. Entering the garage of the dwelling house is not as serious as entering the dwelling house itself and is at the bottom of the range for offences involving the entering of a dwelling house. The serious indictable offence is not one that I can take into account in assessing the objective criminality of that offence, however, the fact that he did commit the assault by using the baseball bat must be taken into account.

73. In Stevens v R [2017] NSWCCA 216 at [40], it was stated that the objective seriousness would depend significantly on the seriousness of the injury, the manner in which the injury was inflicted, the reason it was inflicted, and the surrounding circumstances are also relevant. Similarly, at [41], it was stated that the degree of violence and the ferocity of attack as well as whether the attack was unprovoked are also relevant considerations. Here, the offender was reacting to provocation that had been ongoing for some years. That diminishes, to an extent, his objective criminality. There were three or four blows with the baseball bat but there are many other weapons which could inflict a greater injury. The baseball bat is a rounded bat. It appears to have been of hollow construction of aluminium. For example, a cricket bat could inflict greater injuries because cricket bats can have sharp edges on the face. A baseball bat does not have any sharp edges.

74. The wounding required three stitches and there appears to have been no permanent damage at all to the victim. It has been conceded by the Crown that the injuries were “not particularly serious” in the scale covered by offences of the type. The offence of reckless wounding is aggravated by the use of the weapon, clearly.

75. The Crown has also submitted that the offending took place in the victim’s home, and that is an aggravating factor pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999. I cannot accede to the latter submission. It is an element of the principal offence, aggravated entering a dwelling whilst armed with an offensive weapon that one, in fact, enters a dwelling house or dwelling unit or dwelling apartment, a place where a person lives and, therefore, it cannot be seen as an aggravating factor in the circumstances of this particular case.

76. The offender asked me, through his counsel, to deal with him compassionately but the word he used was mistaken. I believe he meant to ask me to deal with his client mercifully. In effect, the offender is asking me to exercise my power under s 10 of the Crimes (Sentencing Procedure) Act 1999 and, without proceeding to conviction, to release him into the community on a CRO. That has caused me to consider s 10 of the Crimes (Sentencing Procedure) Act 1999. In R v Piccin (No 2) [2001] NSWCCA 323, commencing at [20], Hulme J drew to attention the origin of s 10 of the Crimes (Sentencing Procedure) Act 1999 which, of course, was s 556A of the Crimes Act 1900. He drew attention to the difference in the verbiage used.

77. Section 556A was in these terms:

“(1)   Where any person is charged before any Court with an offence punishable by such Court, and the Court thinks that the charge is proved, but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the Court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than nominal punishment, or that is expedient to release the offence on probation, the Court may, without proceeding to a conviction, make an order:

(a)   dismissing the charge; or

(b)   discharging the offender conditionally on his entering into a recognizance...”

78. The current s 10 is in the following form:

“(1)   Without proceeding to conviction, a Court that finds a person guilty of an offence may make either of the following orders:

(a)   an order directing the relevant charge be dismissed,

(b)   an order discharging a person on condition the person enter into a good behaviour bond...

(2)   An order referred to in (1)(b) may be made if the Court is satisfied:

(a)   that it is inexpedient to inflict any punishment (other than nominal punishment) on that person, or

(b)   that it is expedient to release the person on a good behaviour bond.

(3)   In deciding whether to make an order referred to in (1), the Court is to have regard to the following factors:

(a)   the person’s character, antecedents, age, health and mental condition,

(b)   the trivial nature of the offence,

(c)   the extenuating circumstances in which the offence was committed,

(d)   any other matter that the Court thinks proper to consider.”

79. Hulme J went on to say this:

“26.   However, there is nothing in the explanatory memorandum to the later Act or in the minister’s second reading speech or in the Law Reform Commission Discussion Paper 33 or report 79 which preceded the legislative changes reflected in the Crimes (Sentencing Procedure) Act 1999 to suggest that any change of significance so far as s 556A is concerned was intended. And clearly, a limitation of such that the section could be invoked in only trivial cases would be a change of significance.

27.   That some power should exist to ameliorate the rigours of the criminal law in cases calling out for such an approach has been recognised in a number of cases. It is sufficient for present purposes to refer to one. In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ, with a concurrence of the other members of this Court, said:

‘The essence of s 556A is that it empowers a Court which considers that a charge has been proved, in certain circumstances, to take steps ‘without proceeding to a conviction’. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a Court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 264, ‘A capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.’

28. I am unaware of any other statutory provision or other power applying to offences or offenders generally which enables a Court to avoid recording a conviction when the facts proved establish the commission of an offence. Against this judicially recognised purpose and function of s 556A, one cannot conclude from what is obviously a ‘plain English’ rewriting of the section that a changed limiting it to only trivial offences was intended. Indeed, were one to regard the reference to ‘the trivial nature of the offence’ as limiting the section’s application to only such offences, one would have to take the same approach to the terms of (c) and conclude that the section was not merely limited to trivial offences but to trivial offences where there were also ‘extenuating circumstances’.

29. Such an emasculation of the important provision, designed to mitigate ‘the rigidity of inexorable law’, is not to be inferred in the absence of legislative intent far more clearly demonstrated than in the change in terminology from s 556A to s10.”

80. In an earlier case, R v Paris [2001] NSWCCA 83, the principal judgment was given by Simpson J. Her Honour said this at [42]:

“Subs 3 requires the Court to have regard to the four factors listed. This is not intended to preclude the Court having regard to any other relevant factors but it does require express regard to those matters identified. All that his Honour expressly mentioned in his conclusion were the extenuating circumstances in which the offence was committed. True it is that he had, in his earlier remarks on sentence, outlined matters related to the respondent’s character, antecedents, age, health and mental condition but he did not clearly relate these to his views of s 10. He did, of course, set out at some length the circumstances of the offence and was, therefore, fully aware of its nature. On no view of it could it have been regarded as trivial. It was not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3, are, in my view, intended to be disjunctive and non‑exhaustive.”

81. In the same case the other members of the court said this:

“48. IPP AJA: I agree with everything Simpson J has said, save that I wish to comment on the effect of section 10(3) of the Crimes (Sentencing Procedure) Act. In my view section 10(3) sets out what may be termed as criteria to be borne in mind in deciding whether or not to make an order referred to in subs 1. While none of these criteria is conclusive, all are to be taken into account.

49. WOOD CJ AT CL: I agree with the proposed judgment of Simpson J and with the qualification additional thereto suggested by the presiding judge.”

82. Finally, it also important to bear in mind what was said by Bergin J in R v Nguyen [2002] NSWCCA 183 at [50]:

“The capacity for a court to dismiss charges under s 556A of the Crimes Act reflected the willingness of the legislature, and thus the community, to provide to first offenders, in certain circumstances, a second chance to maintain a reputation of good character.”

83. The principal reason, that the offender asks me to deal with him under s 10, is because dealing with him in any other way would result in a conviction being recorded. The problem for the offender with the recording of a conviction is its effect on his current employment. His current employment is, as I have said, working in a roadside assistance business. The company for which the offender works has as a major client, the New South Wales Police.

84. The New South Wales Police call upon his employer to provide to police cars, their assistance. In his oral evidence the offender said that the police are greatly assisted by his involvement because he can diagnose the problem expeditiously and repair it just as efficiently. He believes that the recording of a conviction would cause him to be unable to service police vehicles and would lead to his dismissal from his job.

85. The offender is now 56 years old. He has, because of problems, fallen from being the proprietor of a very successful car repairing business in the Eastern Suburbs to working as a tow truck driver for others and now working in the roadside assistance area. When he was called to give further evidence, he was affected, almost tearful, in explaining to me the effect of the recording of a conviction on his ability to work and his ability to continue to support his family and of his ability to, in essence, continue with the life that he now has.

86. Furthermore, I bear in mind what Dr Nielssen said about the effect of the offender being sentenced to imprisonment. There are many forms of order which could avoid full‑time imprisonment, for example, an Intensive Corrections Order (“ICO”) or a Community Corrections Order.

Section 10(3)

87. I turn now to the provisions of s 10(3). I have said sufficient about the offender’s character, his background, his age and his health and mental conditions. In no way could this wounding, or reckless wounding, be regarded as trivial. Any wounding is not trivial. Some forms of wounding are not as serious as grievous bodily harm. A wounding merely is the penetration of the three layers of the skin into underlying tissue, generally muscle tissue.

88. The wounding, perhaps, represents part of the history of the common law. Once upon a time, most weapons used in fighting were blades, whether they be spears, swords or daggers and hence, wounding was considered a major offence. With more modern weaponry and other ways of inflicting harm, the distinction was drawn between actual bodily harm and grievous bodily harm even though sometimes bodily harm may not amount to wounding. However, in no way could the assault upon Mr Nicholson be regarded as trivial.

89. The next factor to be borne in mind is the extenuating circumstances on which the offence was committed. I have endeavoured, in giving these reasons, to explain the animosity that arose historically between Mr Nicholson and the offender. The invitations to the offender to fight, all of which in the past had been denied by the offender, but on this occasion, his snapping led to the assault with the baseball bat. However, clearly, the offender was armed, albeit likely that originally it was in order to defend himself if he was required to do so but then he took after “snapping” the action of hitting Mr Nicholson with the bat.

87. The final provision, of course, is any other matter that the Court thinks proper to consider, importantly are, not only the offender’s mental health but more importantly his physical health and his age and the fact that he has done so much for the community in the past and that he is a “first offender”. Those matters need to be stressed.

88. I have consulted the statistics kept by the Judicial Commission. The principal offence with which the offender has been charged is s 112(2) of the Crimes Act, and that carries the penalty of 14 years imprisonment. The statistics show that 378 persons have been dealt with for that offence. In six of those 378 cases, a small percentage, have been dealt with by way of the imposition of a CRO without a conviction. In four of those 378 cases there has been the imposition of a CRO with a conviction.

89. When I go to the underlying offence of s 35(1), reckless wounding, there, 391 cases have been dealt with but no case has been dealt with by way of a CRO without a conviction. There is one case in which a CRO was given, but that was with a conviction. However, in that case there were prior offences of a different type. The records tell me that they were traffic offences and a vehicle regulatory offence only. The offender in that case was aged between 41 and 50 years. However, looking at the principal offence for which I must deal with the offender, there have been earlier cases of a CRO without a conviction.

90. A way of dealing with the current offence might be the imposition of a ICO for a period of two years. That, however, would require the recording of a conviction. However, using a CRO, I can impose a penalty requiring treatment, requiring supervision, requiring the attendance at special courses, as well as the compulsory orders of being of good behaviour and attending upon the Court if called upon to do so. The only difference in orders that could be made between a CRO and ICO, would be the imposition of community service.

91. The SAR tells me that community corrections have assessed the offender as suitable to undertake community service work and that community corrections could provide the equivalent of up to 21 hours of work per month. However, community service work cannot be imposed on a CRO. However, when I look at the SAR, the officer, Isaiah Gabet, merely considered the appellants willingness to undertake community service work and, it would appear, the offender’s statement that he is able to undertake community service work, but it appears to me if they knew of all the offender’s physical problems, they would not permit him to undertake such work.

92. In essence, I could impose upon the offender under a CRO, the orders that I would impose if I made an ICO for a period of two years. That, I believe, is something that I am entitled to take into account under s 10(3)(d).

93. The question is whether I should follow that path or follow the path of dealing with the matter by way of the recording of a conviction. Here, the offender’s lack of a criminal history over a period of 55 years of his life, is a matter to be taken into account, as is the interest of the community that people who commit crime should be able to maintain their reputation for good character if that is of significance. In my view, it is. Again, I repeat, the offence was not trivial but fortunately, Mr Nicholson has made a good recovery, and he is protected by way of an AVO which the offender might like to agree to its being renewed if that was requested of him.

94. Looking at all the circumstances of the current offence, I propose to follow the path which was urged upon me by learned counsel for the offender.

95. Before I impose the order, there is one further thing I should address arising from the submissions made by the Crown. The Crown submitted that ordinarily the offender would be entitled to a 25% discount on his sentence, pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

96. However, the Crown submitted that due to not agreeing to all the facts that the Crown sought, and the fact that a significant part of the evidence to be adduced relates to “relationship evidence” and required the adduction of additional evidence, that there should be some erosion in the utilitarian benefit of the plea because of the factual dispute that needs to be resolved. However, that factual dispute’s impact has been resolved, essentially, in favour of the offender, rather than the Crown. Therefore, I allow the full 25% discount of the sentence because of the plea of guilty at the time it was entered.

97. The Crown did argue one additional aggravating factor, and that was the presence of the offender’s own son, Zac, at the time of the offence committed against Mr Nicholson. Zac was called back by his father, to bring his bat with him. The offender took the bat from his son and went to Mr Nicholson’s garage. There is no evidence about whether the offender told his son he was only taking it to defend himself in case he were attacked, or if he said anything about his need for the bat at all. Certainly, Zac would have able to observe the attack by his father upon Mr Nicholson. Clearly, that is an aggravating factor because Zac, at the time, was still a school boy, was still legally a child.

98. That, of course, is an aggravating factor to the assault but, I suppose, can be tempered by the fact that Zac knew of the ill will between the members of his family and Mr Nicholson. However, the offender owed it to his son not to expose him to the violence which was practiced. I therefore accept that that aggravating factor has been made out by the Crown.

Sentence

102. Jeffery Alan Foxman, under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction but having regard to your good character, your age, your health and your mental condition and the extenuating circumstances in which you committed the offence, I am satisfied that it is expedient to release you on a CRO.

103. I order that you be released on a CRO for a period of two years from today. Conditions of the order are as follows:

1. You are not to commit any offence.

2. You are to appear before Court if called upon to do so at any time during the term of the CRO.

3. You must participate in the following treatment:

1. You are to continue to attend counselling with Ms Lisa Butler, psychologist, until such time as she determines that no further counselling is needed.

2. You are to attend Dr Channo or another general practitioner, at Madison Health, Mona Vale Road, St Ives, every second month, and to take any such antidepressant medication prescribed to you by that practitioner.

4. You are to submit to supervision by a Community Corrections officer.

5. You are to complete an anger management course.

6. You are to report to Community Corrections office at Hornsby within 7 days.

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Decision last updated: 10 October 2025