R v Maw - [2022] NSWDC 683

District Court

New South Wales

Medium Neutral Citation: R v Maw [2022] NSWDC 683
Hearing dates: 8 April 2022
Date of orders: 8 April 2022
Decision date: 08 April 2022
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
(1) Convicted of the offence of recklessly cause grievous bodily harm in company.
(2) Impose a sentence consisting of a non-parole period of one year and ten months and a balance of term of one year and 6 months.

Catchwords:
CRIME — Violent offences — Recklessly cause grievous bodily harm
SENTENCING — Aggravating factors — In company

Legislation Cited:
Crimes Act 1900 (NSW), s 35(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases Cited:
BP v R [2010] NSWCCA 159
Bugmy v R [2013] 249 CLR 571
Bullock v R [2016] NSWCCA 131
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Lloyd v R [2022] NSWCCA 18
Muldrock v R [2011] HCA 39 244 CLR 120
R v Henry (1999) 45 NSWLR 346

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Michael Maw (Offender)
Representation:
Counsel:

Mr Waldersee (Offender)

Solicitors:

Office of the Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2021/00069734

SENTENCE

Introduction

The offender, Michael Maw stands to be sentenced, having pleaded guilty to a single count that on 14 February 2021 at Toongabbie, he assaulted Trevor Sec while in the company of his brothers, Daw Maw and LN, causing him grievous bodily harm, reckless as to causing him actual bodily harm. That is an offence under s 35(1) of the Crimes Act and has a maximum penalty of 14 years imprisonment and there is an applicable standard non‑parole period of five years imprisonment.

The facts

The facts are agreed and the Crown tendered a CCTV recording of the incident giving rise to the offence. I viewed the CCTV last week when I was hearing the sentencing submissions for the co‑offender, Daw Maw. The following is taken from the agreed facts:
At approximately 2.13pm, the victim walked across the concourse of Toongabbie Train Station, having been out buying some food, and began walking down a ramp leading to Portico Parade in Toongabbie. At the same time, this offender and his two brothers were walking together up the ramp towards the concourse of the train station.
The victim and ‑ what's referred to in the facts as – “the three offenders” had a brief interaction with one another. The victim moved past the offenders but turned back and faced them. This offender and the co‑offender, Daw Maw, quickly moved towards the victim, but Daw Maw fell to the ground. This offender pushed the victim backwards onto the footpath at the bottom of the ramp adjacent to Portico Parade. The victim's sunglasses and hat fell off and landed on the footpath and he landed on the footpath heavily. This offender kicked the victim near his head with his right foot. The victim was lying on the ground and put his hands up in front of his face. Daw Maw moved…

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 Maw

Details

AGLC: R v Maw [2022] NSWDC 683
Case: [2022] NSWDC 683
Decision Date: 08 April 2022

CaseChat Overview and Summary

In the matter of R v Maw, the appellant faced conviction for recklessly causing grievous bodily harm in company. The court was tasked with assessing the appropriate sentence following the appellant's admission of guilt. The case arose from an incident where the appellant, along with others, caused significant harm to the victim. The central issue before the court was the determination of an appropriate sentence that adequately reflected the gravity of the offence, while also considering the relevant aggravating and mitigating factors.

The court identified several legal principles that guided its sentencing decision. The primary consideration was the nature of the offence, which involved reckless behaviour resulting in serious physical injury. Additionally, the court considered the aggravating factor of the offence being committed in company, which heightened the culpability of the appellant. The court also examined mitigating factors, including the appellant's plea of guilty and any personal circumstances that may have influenced the commission of the offence. After weighing these factors, the court concluded that the appropriate sentence should reflect both the seriousness of the offence and the mitigating elements presented.

In delivering its decision, the court imposed a sentence consisting of a non-parole period of one year and ten months, followed by a balance of term of one year and six months. This sentence was deemed appropriate given the circumstances of the offence and the mitigating factors presented. The court emphasised the need for the sentence to serve as a deterrent while also providing an opportunity for rehabilitation. The final orders of the court mandated the enforcement of the determined sentence.

Orders

Orders of the court

(1) Convicted of the offence of recklessly cause grievous bodily harm in company.

(2) Impose a sentence consisting of a non-parole period of one year and ten months and a balance of term of one year and 6 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Maw [2022] NSWDC 683
Hearing dates:	8 April 2022
Date of orders:	8 April 2022
Decision date:	08 April 2022
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	(1) Convicted of the offence of recklessly cause grievous bodily harm in company. (2) Impose a sentence consisting of a non-parole period of one year and ten months and a balance of term of one year and 6 months.
Catchwords:	CRIME — Violent offences — Recklessly cause grievous bodily harm SENTENCING — Aggravating factors — In company
Legislation Cited:	Crimes Act 1900 (NSW), s 35(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases Cited:	BP v R [2010] NSWCCA 159 Bugmy v R [2013] 249 CLR 571 Bullock v R [2016] NSWCCA 131 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Lloyd v R [2022] NSWCCA 18 Muldrock v R [2011] HCA 39 244 CLR 120 R v Henry (1999) 45 NSWLR 346
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael Maw (Offender)
Representation:	Counsel: Mr Waldersee (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender)
File Number(s):	2021/00069734