R v Maher, Trevor Wayne; R v Maher, Troy Patrick - [2021] NSWDC 80

District Court

New South Wales

Medium Neutral Citation: R v Maher, Trevor Wayne; R v Maher, Troy Patrick [2021] NSWDC 80
Hearing dates: 16 March 2021
Decision date: 18 March 2021
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
Troy Maher:
The offender is convicted. Taking into account a reduction in sentence of 10% for the utilitarian value of the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 9 months commencing on 13 December 2019 and expiring on 12 September 2021, with a balance of term of 1 year 6 months. The total term is 3 years 3 months imprisonment.
Trevor Maher:
The offender is convicted. Taking into account a reduction in sentence of 25% for the utilitarian value of the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 3 years commencing on 10 December 2019 and expiring on 9 December 2022, with a balance of term of 3 years imprisonment. The total term is 6 years imprisonment.

Catchwords:
SENTENCING – Mitigating factors – Relevance of background of deprivation and disadvantage – Relevance of childhood exposure to domestic and family violence – Impact of intergenerational trauma where offender’s mother a member of the Stolen Generations – application of the Bugmy Bar Book in sentencing proceedings

Legislation Cited:
Crimes(Sentencing Procedure) Act 1999 (NSW), s 21A(1)(d)

Cases Cited:
Bugmy v The Queen [2013] HCA 37
R v Mitchell [2007] 177 A Crim R 94
R v Zhang [2004] NSWCCA 358
Siganto v The Queen (1998) 194 CLR 656

Texts Cited:
Andrew Day et al, ‘Indigenous Family Violence: An Attempt to Understand the Problems and Inform Appropriate and Effective Responses to Criminal Justice System Intervention’ (2012) 19 Psychiatry, Psychology and Law 104
Bugmy Bar Book, Aboriginal and Torres Strait Islander Stolen Generations and Descendants (January 2020)
Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2019)

Category: Sentence
Parties: Director of Public Prosecutions
Trevor Wayne Maher
Troy Patrick Maher
Representation: A Bowens (DPP)
M Cusack (Trevor Maher)
Aboriginal Legal Service NSW/ACT (Troy Maher)

File Number(s): 2019/00389136
2019/00393500

Judgment

The offenders, Trevor and Troy Maher, are brothers. They have pleaded guilty to serious offences which have resulted in significant injury to the victim, John Jarrett. The circumstances giving rise to the offending conduct, when viewed in the context of the evidence about each offender’s background of deprivation and disadvantage and the violence they witnessed as children, provide an example of the different directions in which the purposes of sentencing sometimes point.
This is a case which also highlights the devastating impact of a disadvantaged background not only on the individuals who have lived those experiences, but on victims and the community more widely. What follows also highlights the impact of intergenerational trauma and the compounding effect of being exposed to violence and drug use.
The offenders come before the Court to be sentenced in…

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.

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Details

Case: [2021] NSWDC 80
Decision Date: 18 March 2021

CaseChat Overview and Summary

The case of R v Maher, Trevor Wayne; R v Maher, Troy Patrick was heard in the Supreme Court of New South Wales. The defendants, Trevor Wayne Maher and Troy Patrick Maher, faced criminal charges and the court was tasked with determining their sentences. Both defendants had entered guilty pleas, which resulted in a reduction of their sentences. The legal issues before the court included the consideration of mitigating factors, particularly the defendants' backgrounds of deprivation and disadvantage, their exposure to domestic and family violence during childhood, and the impact of intergenerational trauma due to the offenders’ mother being a member of the Stolen Generations. The court was required to decide how these factors should influence the sentencing, including the application of the Bugmy Bar Book in the sentencing proceedings.

The court examined the mitigating factors presented by the defence, emphasising the significant impact of the defendants' backgrounds on their offending behaviour. The court recognised the relevance of the defendants' upbringing in environments marked by deprivation and disadvantage, as well as their exposure to domestic and family violence. Additionally, the court considered the intergenerational trauma stemming from the mother's history as a member of the Stolen Generations. The Bugmy Bar Book was applied to provide insight into the cultural and social contexts that shaped the defendants' lives and actions, allowing for a more nuanced sentencing approach. The court found these factors to constitute special circumstances, which warranted a reduction in the defendants' sentences.

Troy Patrick Maher was sentenced to a total term of 3 years 3 months imprisonment, with a non-parole period of 1 year 9 months. Trevor Wayne Maher received a sentence of 6 years imprisonment, with a non-parole period of 3 years. The court balanced the gravity of the offences with the mitigating factors presented, resulting in the specified terms of imprisonment. The court's decision acknowledged the complex interplay of personal history and social circumstances in the defendants' lives, leading to the imposition of sentences that reflected both the seriousness of the crimes and the mitigating context of their backgrounds.

The final orders reflect the court's determinations. Troy Patrick Maher is sentenced to 3 years 3 months imprisonment with a non-parole period of 1 year 9 months, while Trevor Wayne Maher is sentenced to 6 years imprisonment with a non-parole period of 3 years. Both sentences commenced on their respective dates of conviction.

Orders

Orders of the court

Troy Maher:

The offender is convicted. Taking into account a reduction in sentence of 10% for the utilitarian value of the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 9 months commencing on 13 December 2019 and expiring on 12 September 2021, with a balance of term of 1 year 6 months. The total term is 3 years 3 months imprisonment.

Trevor Maher:

The offender is convicted. Taking into account a reduction in sentence of 25% for the utilitarian value of the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 3 years commencing on 10 December 2019 and expiring on 9 December 2022, with a balance of term of 3 years imprisonment. The total term is 6 years imprisonment.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Maher, Trevor Wayne; R v Maher, Troy Patrick [2021] NSWDC 80
Hearing dates:	16 March 2021
Decision date:	18 March 2021
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	Troy Maher: The offender is convicted. Taking into account a reduction in sentence of 10% for the utilitarian value of the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 9 months commencing on 13 December 2019 and expiring on 12 September 2021, with a balance of term of 1 year 6 months. The total term is 3 years 3 months imprisonment. Trevor Maher: The offender is convicted. Taking into account a reduction in sentence of 25% for the utilitarian value of the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 3 years commencing on 10 December 2019 and expiring on 9 December 2022, with a balance of term of 3 years imprisonment. The total term is 6 years imprisonment.
Catchwords:	SENTENCING – Mitigating factors – Relevance of background of deprivation and disadvantage – Relevance of childhood exposure to domestic and family violence – Impact of intergenerational trauma where offender’s mother a member of the Stolen Generations – application of the Bugmy Bar Book in sentencing proceedings
Legislation Cited:	Crimes(Sentencing Procedure) Act 1999 (NSW), s 21A(1)(d)
Cases Cited:	Bugmy v The Queen [2013] HCA 37 R v Mitchell [2007] 177 A Crim R 94 R v Zhang [2004] NSWCCA 358 Siganto v The Queen (1998) 194 CLR 656
Texts Cited:	Andrew Day et al, ‘Indigenous Family Violence: An Attempt to Understand the Problems and Inform Appropriate and Effective Responses to Criminal Justice System Intervention’ (2012) 19 Psychiatry, Psychology and Law 104 Bugmy Bar Book, Aboriginal and Torres Strait Islander Stolen Generations and Descendants (January 2020) Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2019)
Category:	Sentence
Parties:	Director of Public Prosecutions Trevor Wayne Maher Troy Patrick Maher
Representation:	A Bowens (DPP) M Cusack (Trevor Maher) Aboriginal Legal Service NSW/ACT (Troy Maher)
File Number(s):	2019/00389136 2019/00393500