Sutherland v The Queen

[2016] NSWDC 266

District Court

New South Wales

Medium Neutral Citation:

Sutherland v R [2016] NSWDC 266

Hearing dates:

6 - 7 June 2016

Date of orders:

07 June 2016

Decision date:

07 June 2016

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Appeal allowed

 

Sentence passed by the Local Court at Sutherland on 3 March 2016 set aside

 Appellant sentenced to good behaviour bond for a period of 18 months

Catchwords:

CRIMINAL LAW – Severity appeal – Assault occasioning actual bodily harm – Coward punch – Appellant suffers from borderline personality disorder – At time of the offence appellant was having medication adjusted – At time of the offence appellant was consuming alcohol – Appellant aware that alcohol would affect efficacy of medication – Appellant suffering from mental condition for purposes of s 32(1) Mental Health (Forensic Provisions) Act 1990 – More appropriate to deal with appellant according to law – No direct medical evidence of victim’s injuries – Full-time custodial sentence excessive

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Pattalis v R [2013] NSWCCA 171

Category:

Principal judgment

Parties:

Brittany Jade Sutherland (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Mr P Kondich (Appellant)
Counsel for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2015/150946

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Sutherland Local Court

Jurisdiction:

Criminal

Date of Decision:

3 March 2016

Before:

Bartley LCM

File Number(s):

2015/00150946

Judgment

1. HIS HONOUR: This is an appeal against severity of sentence passed by Magistrate Bartley sitting in the Local Court at Sutherland on 3 March 2016. The appellant was charged with an offence contrary to s 59(1) of the Crimes Act 1900. The charge was assault occasioning actual bodily harm to Emma Sciberras at Miranda on 22 February 2015 at approximately 1.45am.

2. The assault occurred at the Miranda Hotel situated on The Kingsway at Miranda. It was in the early hours of a Sunday morning. It is evident from the facts that the appellant and her boyfriend had been in the hotel for some time. Another patron, Ms Sciberras, had borrowed the appellant’s boyfriend’s cigarette lighter and had failed to return it promptly. About half an hour after the cigarette lighter had been borrowed, the appellant confronted Ms Sciberras. Ms Sciberras was in the poker machine area. The appellant and her boyfriend entered the poker machine area and walked up to Ms Sciberras who was standing at one of the machines. The appellant stood about half a metre in front of the victim facing her. She asked the victim to return her boyfriend’s cigarette lighter, and the appellant then punched Ms Sciberras in the face with a closed fist. The impact caused Ms Sciberras to fall backwards onto the ground, striking her head after having landed on her back. The appellant then stepped towards the victim and stood looking down at her while other patrons of the hotel came to the scene. Ms Sciberras stood up and, clearly, the…