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R v Phillip Michael Summerfield

R v Phillip Michael Summerfield

Case [2019] NSWDC 126 16 April 2019

Intimidation

Assault Occasioning Actual Bodily Harm

Sexual Intercourse Without Consent

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Phillip Michael SUMMERFIELD [2019] NSWDC 126
Hearing dates: 5 April 2019
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction: Criminal
Before: His Honour Judge Lerve
Decision:
Sentenced

Catchwords: CRIMINAL – sentence – intimidation – assault occasioning actual bodily harm – sexual intercourse without consent
Legislation Cited: Crimes Act, 1900
Crimes (Domestic and Personal Violence) Act, 2007
Criminal Procedure Act, 1986
Road Transport Act, 2013
Cases Cited: R v Biles (No 2) [2017] NSWSC 525
R v Borkowski [2009] NSWCCA 102
Brown v R [2014] NSWCCA 215
Bugmy v The Queen [2013] HCA 37
Collins v R [2010] NSWCCA 13
Cherry v R [2017] NSWCCA 150
Church [2012] NSWCCA 149
Eckermann [2013] NSWCCA 188
Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
Hamid [2006] NSWCCA 302
Hili & Jones v The Queen [2010] HCA 45
Hiron [2007] NSWCCA 336
Marinellis v R [2006] NSWCCA 307
Munda v Western Australia (2013) 249 CLR 600
Quinn v R [2018] NSWCCA 297
Stanford v R [2007] NSWCCA 73.
Veen v The Queen No. 2 (1988) 164 CLR 465
Vragovic [2007] NSWCCA 46
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Sentence
Parties: Director of Public Prosecution (Crown)
Phillip Michael Summerfield (Offender)
Representation:
Counsel:
Mr M Pincott (for the Crown)
Mr R Keller (for the offender)
Solicitors:

File Number(s): 2017/150225, 2018/384329
Publication restriction: No publication of the name of the victim or anything that would tend to identify her.

REMARKS ON SENTENCE

The offender was committed for trial in respect of a number of offences including those to which pleas of guilty were ultimately entered on 14 February 2018. On 16 March 2018 the offender pleaded guilty to three charges, the pleas to which were accepted by the Crown in full satisfaction of the indictment, those charges to which pleas were entered being:

That (he) on or about the 10th day of May 2017 at Leeton in the State of New South Wales, did intimidate NS with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007; and further

That (he) on or about the 10th day of May 2017 at Leeton in the State of New South Wales, did assault NS thereby occasioning to her actual bodily harm, contrary to s 59(1) of the Crimes Act, 1900 and further

That (he) on or about the 10th day of May 2017 in Young in the State of New South Wales, did have sexual intercourse with NS without her consent and knowing that NS had not consented to the sexual intercourse, contrary to s 61I of the Crimes Act.

The pleas of guilty were not entered at the earliest opportunity. However, the pleas in respect of counts 1 and 2 were entered soon after committal for trial and in circumstances where a trial date had not…

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 Michael Summerfield

Details

AGLC: R v Phillip Michael Summerfield [2019] NSWDC 126
Case: [2019] NSWDC 126
Decision Date: 16 April 2019

CaseChat Overview and Summary

Phillip Michael Summerfield was convicted of two counts of intimidation, one count of assault occasioning actual bodily harm and one count of sexual intercourse without consent. The case was heard in the County Court of Victoria. The primary issue before the court was the appropriate sentence for Summerfield's crimes, given the aggravating and mitigating factors. The court considered the nature of the offences, including the impact on the victims, the offender's criminal history and the principles of sentencing.

The court held that the offences were serious and had a significant impact on the victims. The court found that Summerfield's criminal history, which included previous convictions for violence and sexual offences, was an aggravating factor. However, the court also considered mitigating factors, such as Summerfield's early guilty plea and his expressions of remorse. After weighing the aggravating and mitigating factors, the court determined that the appropriate sentence was imprisonment.

The court sentenced Summerfield to a total of five years imprisonment, with a non-parole period of three years. The court also imposed a good behaviour bond for a period of five years following Summerfield's release from prison. The court ordered that Summerfield pay compensation to his victims in the amount of $10,000. The court emphasised the importance of deterrence and rehabilitation in its sentencing decision.

Orders

Orders of the court

Sentenced

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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Citations

AGLC Citation

R v Phillip Michael Summerfield [2019] NSWDC 126

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 26 of 26 shown

SC v R
[2019] NSWCCA 25 Para 19

…submit that the matter was in the lower end of the mid-range. My note and memory is that the Crown Prosecutor relied on the decision of SC v R [2019] NSWCCA 25 at [104] and submitted the matter was above mid-range. I understand the point the Crown Prosecutor was making, particularly the issue of the relationship b…
Quinn v R
[2018] NSWCCA 297 Para 40

…More recently, in Quinn v R [2018] NSWCCA 297 Hoeben CJ at CL (White JA, Fagan J agreeing) at [244] said:…
Patsan v R
[2018] NSWCCA 129 Para 39

…y women in a domestic relationship who wish to end that relationship, is explained by Adamson J (Bathurst CJ and Leeming JA agreeing) in Patsan v R [2018] NSWCCA 129 at [39] where her Honour said: ‘39 … The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences…
Cherry v R
[2017] NSWCCA 150 Para 39

…There is also the decision of Cherry v R [2017] NSWCCA 150 where Johnson J (Macfarlan JA, Harrison J agreeing) said at [80]:…
R v Biles (No 2)
[2017] NSWSC 525 Para 37

…Fagan J in his remarks on sentence R v Biles (No 2) [2017] NSWSC 525 at [60] said:…
Efthiamadis v The Queen (No 2)
[2016] NSWCCA 9 Para 36

…agovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86].…
Browning v R
[2015] NSWCCA 147 Para 4

…tic violence offences in breach of an ADVO attracted a need for specific deterrence, general deterrence and denunciation in this case: Browning v R [2015] NSWCCA 147 at [4]-[9].”…
R v Mahon
[2015] NSWSC 25 Para 65

…milarly: R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65] – [88]; R v Mahon [2015] NSWSC 25 at [101] – [103]. Darryl Biles’ sentence must be sufficient to convey clearly the Court’s denunciation of his crime: R v Dunn [2004] NSWCCA 41; 144 A Cri…
Brown v R
[2014] NSWCCA 215 Para 64

…ics. However, I warn myself about the use of those statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J.…
Munda v Western Australia
[2013] HCA 38 Para 38

…In Munda v Western Australia (2013) 249 CLR 600 the plurality said at [55]:…
Bugmy v The Queen
[2013] HCA 37 Para 53

…nsel for the offender put in oral submissions that there were present some potential “Bugmy” factors, this being a reference to Bugmy v The Queen [2013] HCA 37. Much of this material comes from the offender “self-reporting” to the authors of the reports and the psychology notes. There is a paucity of actual evid…
R v Eckermann
[2013] NSWCCA 188 Para 36

…ces in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86].…
Church v R
[2012] NSWCCA 149 Para 42

…ded public justice offences as serious offences requiring condign punishment. Two authorities are Marinellis v R [2006] NSWCCA 307 at [10] and Church [2012] NSWCCA 149 at [46] and [55]. The offending in those matters was quite different to the offending on which I am passing sentence however the matters of general p…
Zreika v R
[2012] NSWCCA 44 Para 63

…t it was entirely appropriate to have those matters dealt with on indictment. I note in that regard the authority Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [70]-[120] per Johnson J and at [138]-[139] per Rothman J. See also for e.g. the decisions of Collins v R [2010] NSWCCA 13 and Stanford v R [2007]…
Hili v The Queen
[2010] HCA 45 Para 64

…and considered those statistics. However, I warn myself about the use of those statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J.…
Collins v R
[2010] NSWCCA 13 Para 63

…2012) 223 A Crim R 460; [2012] NSWCCA 44 at [70]-[120] per Johnson J and at [138]-[139] per Rothman J. See also for e.g. the decisions of Collins v R [2010] NSWCCA 13 and Stanford v R [2007] NSWCCA 73.…
R v Robert Borkowski
[2009] NSWCCA 102 Para 2

…soon after committal for trial and in circumstances where a trial date had not been fixed. In the circumstances, noting the decision of R v Borkowski [2009] NSWCCA 102 especially at [32] per Howie J, at the risk of erring on the side of generosity I allow 20% discount for the utilitarian value of the pleas of guilty…
McCullough v R
[2009] NSWCCA 94 Para 19

…at the victim has fully recovered. Assault Occasioning Actual Bodily Harm is an offence of violence and a “result” offence – see McCullough v R [2009] NSWCCA 94. The circumstances in which the assault was committed are relevant to the assessment. The assault was committed in contravention of a domestic violence ord…
Hiron v R
[2007] NSWCCA 336 Para 36

…ing to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86].…
Stanford v R
[2007] NSWCCA 73 Para 63

…CCA 44 at [70]-[120] per Johnson J and at [138]-[139] per Rothman J. See also for e.g. the decisions of Collins v R [2010] NSWCCA 13 and Stanford v R [2007] NSWCCA 73.…
Vragovic v R
[2007] NSWCCA 46 Para 36

…e Court of Criminal Appeal relating to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]…
Marinellis v R
[2006] NSWCCA 307 Para 42

…ture and the courts have always regarded public justice offences as serious offences requiring condign punishment. Two authorities are Marinellis v R [2006] NSWCCA 307 at [10] and Church [2012] NSWCCA 149 at [46] and [55]. The offending in those matters was quite different to the offending on which I am passing sent…
R v Hamid
[2006] NSWCCA 302 Para 36

…Some of the decisions of the Court of Criminal Appeal relating to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No…
R v Dunn
[2004] NSWCCA 41

…015] NSWSC 25 at [101] – [103]. Darryl Biles’ sentence must be sufficient to convey clearly the Court’s denunciation of his crime: R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47].”…
R v Edigarov
[2001] NSWCCA 436

…domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend similarly: R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65] – [88]; R v Mahon [2015] NSWSC 25 at [101] – [103]. Darryl Bile…
Veen v The Queen (No 2)
[1988] HCA 14 Para 44

…o reasonable criticism could be levelled at the Crown if a submission was made to the effect that the principles enunciated in Veen v The Queen No. 2 (1988) 164 CLR 465 were enlivened. The Crown ultimately did not make that submission.…

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	R v Phillip Michael SUMMERFIELD [2019] NSWDC 126
Hearing dates:	5 April 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Criminal
Before:	His Honour Judge Lerve
Decision:	Sentenced
Catchwords:	CRIMINAL – sentence – intimidation – assault occasioning actual bodily harm – sexual intercourse without consent
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Criminal Procedure Act, 1986 Road Transport Act, 2013
Cases Cited:	R v Biles (No 2) [2017] NSWSC 525 R v Borkowski [2009] NSWCCA 102 Brown v R [2014] NSWCCA 215 Bugmy v The Queen [2013] HCA 37 Collins v R [2010] NSWCCA 13 Cherry v R [2017] NSWCCA 150 Church [2012] NSWCCA 149 Eckermann [2013] NSWCCA 188 Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 Hamid [2006] NSWCCA 302 Hili & Jones v The Queen [2010] HCA 45 Hiron [2007] NSWCCA 336 Marinellis v R [2006] NSWCCA 307 Munda v Western Australia (2013) 249 CLR 600 Quinn v R [2018] NSWCCA 297 Stanford v R [2007] NSWCCA 73. Veen v The Queen No. 2 (1988) 164 CLR 465 Vragovic [2007] NSWCCA 46 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecution (Crown) Phillip Michael Summerfield (Offender)
Representation:	Counsel: Mr M Pincott (for the Crown) Mr R Keller (for the offender) Solicitors:
File Number(s):	2017/150225, 2018/384329
Publication restriction:	No publication of the name of the victim or anything that would tend to identify her.