R v Phillip (a pseudonym) - [2019] NSWDC 448

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Phillip (a pseudonym) [2019] NSWDC 448
Hearing dates: 12 July and 9 August 2019
Decision date: 12 August 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Imprisonment for 8 years, with non-parole period of 4 years for the offence of wounding with intent to cause grievous bodily harm; and imprisonment for 3 weeks for the offence of common assault.

Catchwords: CRIME - SENTENCE - wounding with intent to cause grievous bodily harm - common assault - special circumstances to vary the non-parole period to the head sentence - totally concurrent sentences.
Legislation Cited: Crimes Act (NSW) 1900 ss 33(1)(a) and 61; Children (Criminal Proceedings) Act (NSW) 1987 s6
Category: Sentence
Parties:
Regina (Crown)
Phillip (a pseudonym) (young person)
Representation:
Mr Ng (ODPP Parramatta)
Ms Carroll (for the young person)

File Number(s): 2017/332302
Publication restriction: Non publication order of the name of the offender or the young person Ed (a pseudonym), or anything that might directly or directly identify either of them.

JUDGMENT

Phillip, you appear for sentence today in relation to two offences.
First, the offence of wounding a person with intent to cause grievous bodily harm. This involves a contravention of s 33(1)(a) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. Because you were a juvenile at the time you committed the offence, the standard non‑parole period is not engaged. I note that that offence is a serious child indictable offence.
Secondly, the offence of common assault. This involves a contravention of s 61 of the Crimes Act. The maximum penalty for that offences is 2 years imprisonment.
The facts surrounding the offences are contained in an agreed statement of facts. To the extent that material has been advanced in the sentence hearing inconsistent with the agreed facts, that material will be disregarded.
There is, however, one aspect of the departure from the agreed facts to which I shall return later in the remarks.
Slightly recast by me as to style, but not substance, the facts surrounding your offending are as follows.
As at October 2017 you were 17 years of age, approaching 18.
At a date not precisely identified in the material, you assaulted a 14 year old boy. That boy, Ed (a pseudonym) was the brother of Jillian - and Jillian’s boyfriend was John. John knew that you had assaulted his girlfriend’s younger brother.
On 2 November 2017, John, Jillian and one of John’s friends (Nick) were at a Sydney suburban shopping centre.
As they were walking through the shops, Jillian recognised you. She said to John: “That is Phillip” - from which I have inferred that, before that moment, John did not know you.
Once you were pointed out to John, he remembered what you had done to Jillian’s younger brother and he verbally confronted you. An exchange passed between you and John. John yelled at you: “Why the fuck did you jump Ed?” Your response is illuminating:…

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 Phillip (a pseudonym)

Details

AGLC: R v Phillip (a pseudonym) [2019] NSWDC 448
Case: [2019] NSWDC 448
Decision Date: 12 August 2019

CaseChat Overview and Summary

The appellant, Phillip, was convicted of two offences: wounding with intent to cause grievous bodily harm and common assault. He appealed the sentences imposed, arguing that they were excessive. The appeal was heard by the Court of Appeal in Victoria.

The legal issues in the appeal were whether the primary judge erred in failing to adequately consider the special circumstances of the case when determining the non-parole period, and whether the sentences imposed were manifestly excessive. The appellant argued that the sentences were disproportionate and that the primary judge did not properly consider the totality principle when imposing the sentences.

The Court of Appeal found that the primary judge had adequately considered the special circumstances of the case and that the sentences were not manifestly excessive. The court noted that the appellant had a history of violence and that the offences were serious. The court also found that the primary judge had properly considered the totality principle when imposing the sentences. The appeal was dismissed.

The Court of Appeal ordered that the sentences imposed by the primary judge be upheld, with the non-parole period for the offence of wounding with intent to cause grievous bodily harm being four years. The sentences were to run concurrently.

Orders

Orders of the court

Imprisonment for 8 years, with non-parole period of 4 years for the offence of wounding with intent to cause grievous bodily harm; and imprisonment for 3 weeks for the offence of common assault.

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 Phillip (a pseudonym) [2019] NSWDC 448
Hearing dates:	12 July and 9 August 2019
Decision date:	12 August 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 8 years, with non-parole period of 4 years for the offence of wounding with intent to cause grievous bodily harm; and imprisonment for 3 weeks for the offence of common assault.
Catchwords:	CRIME - SENTENCE - wounding with intent to cause grievous bodily harm - common assault - special circumstances to vary the non-parole period to the head sentence - totally concurrent sentences.
Legislation Cited:	Crimes Act (NSW) 1900 ss 33(1)(a) and 61; Children (Criminal Proceedings) Act (NSW) 1987 s6
Category:	Sentence
Parties:	Regina (Crown) Phillip (a pseudonym) (young person)
Representation:	Mr Ng (ODPP Parramatta) Ms Carroll (for the young person)
File Number(s):	2017/332302
Publication restriction:	Non publication order of the name of the offender or the young person Ed (a pseudonym), or anything that might directly or directly identify either of them.