R v Hemsworth

[2021] NSWDC 638

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hemsworth [2021] NSWDC 638

Hearing dates:

27 August 2021

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence imposed one of 18 years and 6 months imprisonment with a non-parole period of 13 years and 10 months

Catchwords:

CRIME — Violent offences — Cause grievous bodily harm with intent

CRIME — Parental responsibility — Failure to provide necessities of life

CRIME — Public justice offences — Do an act with intent to pervert course of justice

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(b), 43A(2), 319,

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25F

Cases Cited:

R v Nolan [2017] NSWCCA 91

Nasrallah v The Queen [2015] NSWCCA 188

DPP v De La Rosa [2010] NSWCCA 194

Bugmy v The Queen [2013] HCA 37

Category:

Sentence

Parties:

Brendan Ray Hemsworth (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr Davies (Offender)
Ms O’Meagher (Crown)

File Number(s):

2019/00153458

Publication restriction:

Non-publication order in relation to victim’s name

SENTENCE

Introduction

1. The offender stood trial by a jury in relation to an indictment containing four counts, the particulars of which I will shortly explain. The offender was convicted by the jury of count 1 and count 3. Count 2 was an alternative to count 1 so no verdict was taken on that count. The offender pleaded guilty to count 4 on the indictment at the commencement of the trial before the jury, having indicated a plea of guilty to that count in the Local Court. Count 1 contained an offence that between 8 March 2019 and 13 March 2019 at Iluka the offender caused grievous bodily harm to SH with intent to cause her grievous bodily harm. That is an offence under s 33(1)(b) of the Crimes Act 1900 and has a maximum penalty of 25 years’ imprisonment and there is an applicable standard non‑parole period of seven years.

2. Count 3 contained an offence that between 8 March and 13 March 2019 at Iluka the offender, being a person having parental responsibility for SH, intentionally and without reasonable excuse failed to provide SH with the necessities of life, namely, medical care and attention, and the result of that failure caused a danger of death to SH. That is an offence under s 43A(2) of the Crimes Act and has a maximum penalty of five years’ imprisonment and there is no applicable standard non‑parole period. Count 4 contained an offence that between 8 March and 23 May 2019 at Iluka the offender created and maintained a false alibi with the intention of avoiding prosecution in relation to the injuries inflicted upon SH, thereby intending to pervert the course of justice. That is an offence under s 319 of the Crimes Act and has a maximum penalty of 14 years’ imprisonment and there is no applicable standard non‑parole period.

The Facts

3. Turning then to the facts. These being essentially sentence…