R v Robinson - [2020] NSWDC 837

District Court

New South Wales

Medium Neutral Citation: R v Robinson [2020] NSWDC 837
Hearing dates: 20 November 2020
Date of orders: 23 November 2020
Decision date: 23 November 2020
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Term of imprisonment of 4 years and 10 months with a non-parole period of 2 years and 5 months.

Catchwords:
SENTENCING — Subjective considerations on sentence — Special circumstances – Intoxication – Mental illness
SENTENCING — Relevant factors on sentence — Circumstances of offence — General and specific deterrence
CRIME — Violent offences — Assault causing death

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Pattalis v R [2013] NSWCCA 171
R v Garth No 2 [2017] NSWDC 471
R v Imbornone [2017] NSWCCA 144
R v Johnson (No 5) [2017] NSWSC 1169
R v Wood [2014] NSWCCA 184
RvYardley [2019] NSWCCA 291

Category: Sentence
Parties: Regina (Crown)
Zaine Robinson (Offender)
Representation:
Counsel:
K Tennant (Crown)
P Stitz (Offender)
Solicitors:
D Harvey, ODPP NSW (Crown)
C Murnane, Legal Aid NSW (Offender)

File Number(s): 2018/341141

Judgment

Zaine Robinson, 22 years of age, appears for sentence in relation to one offence of assault causing death pursuant to s 25A(1), Crimes Act 1900 (NSW). The prescribed maximum penalty for that offence is 20 years imprisonment. There is no prescribed standard non-parole period.
The offender pleaded guilty on 6 December 2019 at the Gosford Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.
The offender has also consented to this Court dealing with breaches of two Maitland Local Court bonds.
The offender has been in custody bail refused since 6 November 2018, the date of his arrest. Accordingly, the sentence imposed today will be backdated to commence on that date.

The Agreed Facts

Lee Ingly (the victim), born 13 June 1961, lived alone at Unit 6, 19 Sinclair Street, Gosford. He had struggled with alcohol addiction for some years. In 2006, he suffered a stroke which affected his speech and movement. His speech was slurred and he was unstable on his feet. He had been diagnosed as suffering from multifactorial balance problems and had a tremor in his hands. He used a walking stick to assist because of his poor balance and overall frailty. Mr Ingly also suffered from HCV (Hepatitis C) which together with the alcohol use, resulted in cirrhosis.
On 6 November 2018, a disability care worker attended Mr Ingly’s residence and provided the usual assistance with cleaning as well as general companionship. The care worker thought Mr Ingly was in a good mood and did not appear intoxicated at that time. She left the residence around 2 pm.
At 7.49 pm, Mr Ingly entered the Beer Wine Spirits liquor shop next to the Woolworths Supermarket inside the Imperial Centre, Gosford. Mr Ingly placed his walking stick on the…

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 Robinson

Details

AGLC: R v Robinson [2020] NSWDC 837
Case: [2020] NSWDC 837
Decision Date: 23 November 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Robinson, the appellant faced sentencing for a charge of assault causing death. The case was heard in the Supreme Court of Queensland. The appellant had pleaded guilty to the charge, which arose from an incident where he had caused the death of a person through an assault while intoxicated and suffering from a mental illness. The court was tasked with determining the appropriate term of imprisonment and the non-parole period, considering the unique circumstances of the offence, including the appellant's intoxication and mental health status at the time of the incident.

The primary legal issues before the court involved assessing the subjective considerations pertinent to the sentencing, such as the appellant's intoxication and mental health, and the objective considerations, such as the nature and circumstances of the offence, the need for general and specific deterrence, and the principles of proportionality and consistency in sentencing. The court had to balance these considerations in light of the statutory guidelines and precedents. The appellant's intoxication and mental illness were significant factors that needed to be weighed in the sentencing process, as they impacted his culpability and moral blameworthiness.

The court recognised that while the appellant's intoxication and mental illness were mitigating factors, they did not absolve him of responsibility for his actions. The court found that the circumstances of the offence, which involved a violent assault resulting in death, warranted a substantial term of imprisonment. After considering all relevant factors, the court imposed a sentence of imprisonment for 4 years and 10 months, with a non-parole period of 2 years and 5 months. This sentence was deemed appropriate given the severity of the offence and the need to balance the principles of deterrence and rehabilitation with the mitigating circumstances.

Orders

Orders of the court

Term of imprisonment of 4 years and 10 months with a non-parole period of 2 years and 5 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 Robinson [2020] NSWDC 837
Hearing dates:	20 November 2020
Date of orders:	23 November 2020
Decision date:	23 November 2020
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Term of imprisonment of 4 years and 10 months with a non-parole period of 2 years and 5 months.
Catchwords:	SENTENCING — Subjective considerations on sentence — Special circumstances – Intoxication – Mental illness SENTENCING — Relevant factors on sentence — Circumstances of offence — General and specific deterrence CRIME — Violent offences — Assault causing death
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 Pattalis v R [2013] NSWCCA 171 R v Garth No 2 [2017] NSWDC 471 R v Imbornone [2017] NSWCCA 144 R v Johnson (No 5) [2017] NSWSC 1169 R v Wood [2014] NSWCCA 184 RvYardley [2019] NSWCCA 291
Category:	Sentence
Parties:	Regina (Crown) Zaine Robinson (Offender)
Representation:	Counsel: K Tennant (Crown) P Stitz (Offender) Solicitors: D Harvey, ODPP NSW (Crown) C Murnane, Legal Aid NSW (Offender)
File Number(s):	2018/341141