R v Owen - [2021] NSWDC 421

District Court

New South Wales

Medium Neutral Citation: R v Owen [2021] NSWDC 421
Hearing dates: 13 August 2021
Decision date: 19 August 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 6 months.

Catchwords:
CRIME- Recklessly cause grievous bodily harm – one punch attack - alcohol fuelled street violence
SENTENCING - Relevant factors on sentence –
one punch - no premeditation - early plea acceptance of responsibility - serious harm caused – victim suffers traumatic brain injury - victim impact - strong case in mitigation - offender of good character - victim and offender have overcome many difficulties in life - tragedy for both parties – application of principle- consistency in sentencing – utility of general deterrence - need for full time custody - special circumstances - victim vindication - retribution

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Chenhall v R [2021] VSCA 175
Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38
Pattalis v R [2013] NSWCCA 171
Queen v Pham (2015) 256 CLR 550: [2015] HCA 39
R v AEM [2002] NSWCCA 58
R v Loveridge [2014] NSWCCA [120]
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R vTuala [2015] NSWCCA 8
Worboyes v R [2021] VSCA 169

Category: Sentence
Parties: Tyson Tauteka Owen (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Clark (for the offender)
Solicitors:
Kells Lawyers ( (for the offender)
Ms T Lasschuit (for Director of Public Prosecutions)

File Number(s): 2020/00320002

sentence

Introduction

In the early hours of the morning of 8 November 2020 in Wollongong’s Crown Street a relatively minor altercation between two groups of men escalated; leaving one, Nkululeko Moyo, with a traumatic brain injury (TBI) and the other, Tyson Owen, facing a lengthy term of imprisonment. Both Mr Moyo and Owen had overcome some adversity in their respective lives. Both are men of promise. Both of their lives have been irrevocably changed by one incident of alcohol fuelled violence.
Owen is for sentence today having accepted his guilt to a charge of recklessly causing grievous bodily harm: s35(2) Crimes Act 1900. That offence carries a maximum penalty of 10 years imprisonment. Parliament has fixed a standard non-parole period of 4 years for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. The sentence to be imposed reflects a reduction of 25% to take into account the utilitarian value of the offender’s early guilty plea: s 25D Crimes (Sentencing Procedure) Act 1999 (C(SP) Act).

Agreed facts

There are agreed facts before the court. And, the incident and what preceded it, were captured on…

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 Owen

Details

AGLC: R v Owen [2021] NSWDC 421
Case: [2021] NSWDC 421
Decision Date: 19 August 2021

CaseChat Overview and Summary

In the case of R v Owen, the defendant was convicted of recklessly causing grievous bodily harm through a one-punch attack, an incident that occurred in the context of alcohol-fuelled street violence. The case was heard in a court of criminal jurisdiction in Australia. The primary dispute centred on the appropriate sentence for the offence, considering the factors that should influence the severity of the penalty.

The court was required to balance various legal considerations, including the nature of the offence, the level of harm inflicted, the defendant's culpability, and mitigating factors presented in the case. Specifically, the court needed to assess whether the attack was premeditated, the extent of the harm caused, the defendant's acceptance of responsibility, and the personal circumstances of both the offender and the victim. It was also necessary to weigh the principles of consistency in sentencing, general deterrence, and the specific circumstances that might warrant a departure from the usual sentencing norms.

In delivering its judgment, the court recognised that while the offence was serious and resulted in significant harm, there were mitigating factors to be considered. The defendant had no prior criminal history, had shown remorse, and there was evidence of personal difficulties faced by both parties. The court emphasised the importance of consistency in sentencing but also acknowledged the need to consider the unique aspects of this case. Ultimately, the court determined that the defendant should be sentenced to a term of imprisonment, with a non-parole period, to balance the need for retribution, deterrence, and the rehabilitation of the offender.

The court ordered that the defendant be sentenced to a term of imprisonment of three years, with a non-parole period of one year and six months. This decision reflects the court's consideration of the relevant factors and the need to achieve a just outcome in the circumstances of the case.

Orders

Orders of the court

Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 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 Owen [2021] NSWDC 421
Hearing dates:	13 August 2021
Decision date:	19 August 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 6 months.
Catchwords:	CRIME- Recklessly cause grievous bodily harm – one punch attack - alcohol fuelled street violence SENTENCING - Relevant factors on sentence – one punch - no premeditation - early plea acceptance of responsibility - serious harm caused – victim suffers traumatic brain injury - victim impact - strong case in mitigation - offender of good character - victim and offender have overcome many difficulties in life - tragedy for both parties – application of principle- consistency in sentencing – utility of general deterrence - need for full time custody - special circumstances - victim vindication - retribution
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Chenhall v R [2021] VSCA 175 Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38 Pattalis v R [2013] NSWCCA 171 Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 R v AEM [2002] NSWCCA 58 R v Loveridge [2014] NSWCCA [120] R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R vTuala [2015] NSWCCA 8 Worboyes v R [2021] VSCA 169
Category:	Sentence
Parties:	Tyson Tauteka Owen (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Clark (for the offender) Solicitors: Kells Lawyers ( (for the offender) Ms T Lasschuit (for Director of Public Prosecutions)
File Number(s):	2020/00320002