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R v Young

R v Young

Case [2024] NSWDC 24 23 February 2024

Criminal Liability

Sentencing

Reckless Grievous Bodily Harm

Joint Criminal Enterprise

Victim Impact Statement

Aggravating Factors

Bugmy Principles

De La Rosa Principles

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Young [2024] NSWDC 24
Hearing dates: 13 December 2023 and 16 February 2024
Date of orders: 23 February 2024
Decision date: 23 February 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender, having pleaded guilty, is convicted of the offence.
(2)   I impose a sentence of imprisonment of 2 years 6 months to date from 28 October 2022 and to expire on 27 April 2025.
(3)   I impose a non-parole period of 1 year 6 months to date from 28 October 2022 and expiring on 27 April 2024.
(4)   The earliest date the offender is eligible to be released on parole is 27 April 2024.

Catchwords:
CRIME – sentencing - reckless grievous bodily harm in company - co-offender – joint criminal enterprise - victim impact statement – substantial emotional harm - whether aggravating factors – Bugmy principles – De La Rosa principles

Legislation Cited:
Crimes Act1900, s 35(1)
Crime (Sentencing Procedure) Act 1999, ss 3A(g) 10A, 21A(2)(g)

Cases Cited:
Alkanaan v R [2017] NSWCCA 56
Bugmy v The Queen [2013] 249 CLR 571; [2013] HCA 37
DC v R [2023] NSWCCA 82
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Dungay v R [2020] NSWCCA 209
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Huynh v R [2015] NSWCCA 179
Josefski v R [2010] NSWCCA 41
KR v R [2012] NSWCCA 32
Luque v R [2017] NSWCCA 226
Muldrock v R (2011) 244 CLR 120
R v Wickham [2004] NSWCCA 193
Ryan v Regina [2017] NSWCCA 209

Category: Sentence
Parties: Rex
Nathan Young
Representation:
Counsel:
Mr D Mulligan (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Offender)

File Number(s): 2022/323183
Publication restriction: None

REMARKS ON SENTENCE

The offender was committed for sentence from Nowra Local Court on 6 October 2023 having entered a plea of guilty to a single offence of reckless grievous bodily harm in company contrary to s 35(1) of the Crimes Act1900. The maximum penalty for the offence of 14 years, with a standard non-parole period of 5 years is an indication of the seriousness of the charge and acts as a sentencing guidepost or reference point.
Admitted on behalf of the Crown were the following: –

C1- Notice of committal

C2- Charge certificate and court attendance notice

C4- Agreed statement of facts

C5- Criminal history

C6- Custodial history

C7- Breach of parole documents

C8- Witness impact statement with annexures

C9- Expert Certificate and statement of Dr Methven

C10- Expert Certificate and statement of Dr Liu dated 12 January 2024

C11- 2x Report of Dr Liu dated 2 March 2023 and report of Dr McFarlen dated 9 August 2023

C12- Expert Certificate and report of Dr McCall

C13- Statement of Detective Senior Constable Michael Ricketts dated 12 February 2024

C14- Bundle of progress medical notes

Admitted on behalf of the offender was a report of Ivanka Manoski, psychologist dated 15 November…

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 Young

Details

AGLC: R v Young [2024] NSWDC 24
Case: [2024] NSWDC 24
Decision Date: 23 February 2024

CaseChat Overview and Summary

In the case of R v Young, the defendant was convicted of recklessly causing grievous bodily harm in company, a serious criminal offence. The incident took place in a public place, and the victim sustained substantial physical and emotional harm. The offender pleaded guilty and was sentenced by the court. The case brought before the court raised questions about the appropriate sentence for the offence, particularly in light of the victim’s substantial emotional harm, the principles set out in Bugmy v R, and De La Rosa v R.

The court had to decide whether the offender's actions constituted aggravating factors that warranted a more severe sentence. The victim's substantial emotional harm was considered, along with the principles established in Bugmy v R, which highlight the importance of considering the impact of a crime on the victim in sentencing. The court also needed to apply the principles from De La Rosa v R, which focus on the individual circumstances of the offender and the offence. The court examined these factors in determining the appropriate sentence.

The court considered the gravity of the offence and the substantial emotional harm suffered by the victim. It concluded that the offender's actions warranted a sentence of imprisonment. The court imposed a sentence of two years and six months, with a non-parole period of one year and six months. The court set the earliest date for parole eligibility as 27 April 2024. The court found that this sentence appropriately balanced the need for punishment and deterrence with the principles of sentencing outlined in Bugmy and De La Rosa.

Orders

Orders of the court

(1) The offender, having pleaded guilty, is convicted of the offence.

(2) I impose a sentence of imprisonment of 2 years 6 months to date from 28 October 2022 and to expire on 27 April 2025.

(3) I impose a non-parole period of 1 year 6 months to date from 28 October 2022 and expiring on 27 April 2024.

(4) The earliest date the offender is eligible to be released on parole is 27 April 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Young [2024] NSWDC 24

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Giles-Adams v R; Preca v R
[2023] NSWCCA 122 Para 49

…ase. This avoided the need for further exacerbation of the distress to the victim. By reference the judgment of Yehia J in Giles-Adams v R; Preca v R [2023] NSWCCA 122 it was noted that the concept of the utilitarian value of the plea and the degree to which the plea demonstrated willingness to facilitate administra…
DC v R
[2023] NSWCCA 82 Para 72

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
Dungay v R
[2020] NSWCCA 209 Para 45

…n this respect accepted that there was some causal nexus arising from the offender’s deprived background by reference to the decision of Dungay v R [2020] NSWCCA 209. The Crown accepted whilst moral culpability reduced the purpose of general deterrence, the need to protect the community may be higher. The Crown also…
Luque v R
[2017] NSWCCA 226

…09 Giles-Adams v R; Preca v R [2023] NSWCCA 122 Huynh v R [2015] NSWCCA 179 Josefski v R [2010] NSWCCA 41 KR v R [2012] NSWCCA 32 Luque v R [2017] NSWCCA 226 Muldrock v R (2011) 244 CLR 120 R v Wickham [2004] NSWCCA 193 Ryan v Regina [2017] NSWCCA 209 Category: Sentence Parties: Rex Nathan Young Representation: Coun…
Ryan v Regina
[2017] NSWCCA 209

…] NSWCCA 41 KR v R [2012] NSWCCA 32 Luque v R [2017] NSWCCA 226 Muldrock v R (2011) 244 CLR 120 R v Wickham [2004] NSWCCA 193 Ryan v Regina [2017] NSWCCA 209 Category: Sentence Parties: Rex Nathan Young Representation: Counsel: Mr D Mulligan (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal…
Alkanaan v R
[2017] NSWCCA 56 Para 75

…that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –…
Huynh v The Queen
[2015] NSWCCA 179 Para 64

…der contends that there is no evidence to support the Crown's submission that the victim has suffered an appreciable psychological injury ( Huynh v R [2015] NSWCCA 179 at [29]). Further, the emotional harm allegedly suffered by the victim could not have been expected or reasonably foreseen as a result of the commiss…
Bugmy v The Queen
[2013] HCA 37 Para 45

…The Crown conceded that the Bugmy v The Queen [2013] 249 CLR 571; [2013] HCA 37 principles would apply and be considered in the sentencing exercise and in this respect accepted that there was some causal nexus arising from the offender’s deprived background by reference to the decision of Dungay v R [2020] NSWCC…
KR v R
[2012] NSWCCA 32 Para 62

…the acts in the course of the joint criminal enterprise, it is necessary to consider the offender’s culpability by reference to his conduct: KR v R [2012] NSWCCA 32 at [19]. Whilst the initial strike was inflicted by the co-offender, the offender shortly thereafter struck the victim to the face at the same time as…
Muldrock v The Queen
[2011] HCA 39 Para 75

…Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and De La Rosa have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sen…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 46

…The Crown also conceded that the mitigating limbs of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 were engaged although protection of the community was relevant in the sentencing exercise in light of the offender’s psychological condition. Ultimately the assessment of objective and subjective…
Josefski v R
[2010] NSWCCA 41 Para 64

…could not have been expected or reasonably foreseen as a result of the commission of the offence: R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R [2010] NSWCCA 41.…
R v Wickham
[2004] NSWCCA 193 Para 64

…l harm allegedly suffered by the victim could not have been expected or reasonably foreseen as a result of the commission of the offence: R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R [2010] NSWCCA 41.…

Legislation cited in this decision · 2

Crime (Sentencing Procedure) Act 1999 (NSW)
21A(2)(g), 3A(g) 3 mentions (from Para 19)
Crimes Act 1900 (ACT)
35(1) 2 mentions (from Para 1)

Medium Neutral Citation:	R v Young [2024] NSWDC 24
Hearing dates:	13 December 2023 and 16 February 2024
Date of orders:	23 February 2024
Decision date:	23 February 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender, having pleaded guilty, is convicted of the offence. (2) I impose a sentence of imprisonment of 2 years 6 months to date from 28 October 2022 and to expire on 27 April 2025. (3) I impose a non-parole period of 1 year 6 months to date from 28 October 2022 and expiring on 27 April 2024. (4) The earliest date the offender is eligible to be released on parole is 27 April 2024.
Catchwords:	CRIME – sentencing - reckless grievous bodily harm in company - co-offender – joint criminal enterprise - victim impact statement – substantial emotional harm - whether aggravating factors – Bugmy principles – De La Rosa principles
Legislation Cited:	Crimes Act1900, s 35(1) Crime (Sentencing Procedure) Act 1999, ss 3A(g) 10A, 21A(2)(g)
Cases Cited:	Alkanaan v R [2017] NSWCCA 56 Bugmy v The Queen [2013] 249 CLR 571; [2013] HCA 37 DC v R [2023] NSWCCA 82 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Dungay v R [2020] NSWCCA 209 Giles-Adams v R; Preca v R [2023] NSWCCA 122 Huynh v R [2015] NSWCCA 179 Josefski v R [2010] NSWCCA 41 KR v R [2012] NSWCCA 32 Luque v R [2017] NSWCCA 226 Muldrock v R (2011) 244 CLR 120 R v Wickham [2004] NSWCCA 193 Ryan v Regina [2017] NSWCCA 209
Category:	Sentence
Parties:	Rex Nathan Young
Representation:	Counsel: Mr D Mulligan (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Offender)
File Number(s):	2022/323183
Publication restriction:	None