The Queen v Evans - [2019] NFSC 2

SUPREME COURT OF NORFOLK ISLAND
The Queen v Evans [2019] NFSC 2

File number: SCC 3 of 2018

Judge: BESANKO CJ

Date of judgment: 27 September 2019

Catchwords:
CRIMINAL LAW — where offender convicted for the offence of recklessly inflicting grievous bodily harm contrary to s 78(1) of the Criminal Code 2007 (NI) — where offender “glassed” complainant — where offender originally charged with intentionally inflicting grievous bodily harm contrary to s 77(1) of the Criminal Code — where offender pleaded guilty to recklessly inflicting grievous bodily harm

CRIMINAL LAW — consideration of the appropriate sentence to be imposed — where the maximum penalty for the offence is 10 years imprisonment — where the parties correctly identified that a sentence of imprisonment must be imposed — consideration of comparable cases including Winch v R [2010] VSCA 141 and Director of Public Prosecutions v Giannoukas [2011] VSCA 296

CRIMINAL LAW — whether the sentence should be suspended in whole or in part under s 39 of the Sentencing Act 2007 (NI) — where seriousness of the offending points away from suspension — where there are a number of mitigating factors — where offender indicated guilty plea at earliest possible opportunity — where offender has no record of violence — where offender demonstrated remorse and contrition — where offender has slight chances of reoffending and good prospects of rehabilitation

CRIMINAL LAW — whether the Court should make a compensation order pursuant to s 121 of the Sentencing Act

Legislation:
Criminal Code 2007 (NI) ss 77, 78

Sentencing Act 2007 (NI) ss 5, 39, 121, 142

Cases cited:
Blackwell v R [2012] NSWCCA 227

Butters v R [2010] NSWCCA 1

Director of Public Prosecutions v Giannoukas [2011] VSCA 296

The Queen v Christian (No 2) [2018] NFSC 4

Winch v R [2010] VSCA 141

Date of hearing: 26 September 2019

Category: Catchwords

Number of paragraphs: 42

Counsel for the Prosecution: Ms R M O’Gorman

Solicitor for the Prosecution: Director of Public Prosecutions

Counsel for the Offender: Mr P Rowe

Solicitor for the Offender: Mr W D Richards

ORDERS

SCC 3 of 2018

BETWEEN:
THE QUEEN

Prosecutor

AND:
SHANE PAUL EVANS

Offender

JUDGE:

BESANKO CJ

DATE OF ORDER:

27 SEPTEMBER 2019

THE COURT ORDERS THAT:
1.The offender be sentenced to imprisonment for two years and eight months.
2.The sentence of imprisonment be suspended in whole for a period of two years and eight months, during which time the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 42 of the Sentencing Act 2007 (NI).
3.The offender pay within one month the sum of $1,000 as compensation for the injury suffered by Mr Kyran Buffett, such amount to be paid into Court and the Court will thereafter disburse the funds.

REASONS FOR JUDGMENT
BESANKO CJ:
INTRODUCTION

The offender has pleaded guilty to the offence of recklessly inflicting grievous bodily harm on Mr Kyran Michael Steele Buffett contrary to s 78(1) of the Criminal Code…

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 The Queen v Evans

Details

AGLC: The Queen v Evans [2019] NFSC 2
Case: [2019] NFSC 2
Decision Date: 27 September 2019

CaseChat Overview and Summary

The case of The Queen v Evans involved the defendant, who was convicted for recklessly inflicting grievous bodily harm on the complainant. The defendant had originally been charged with intentionally inflicting grievous bodily harm but later pleaded guilty to the lesser charge of recklessly inflicting grievous bodily harm. The court was tasked with determining the appropriate sentence for this offence under the Criminal Code 2007 (NI). The maximum penalty for this offence is 10 years imprisonment, and both parties agreed that a sentence of imprisonment was necessary.

The legal issues before the court included the appropriate sentence for the offence, taking into account comparable cases such as Winch v R and Director of Public Prosecutions v Giannoukas. Additionally, the court needed to consider whether the sentence should be suspended in whole or in part under s 39 of the Sentencing Act 2007 (NI), given the seriousness of the offending and various mitigating factors. The defendant's early guilty plea, lack of prior violent record, and demonstrated remorse were among the mitigating factors considered.

The court found that the seriousness of the offending did not favour suspension of the sentence, but several mitigating factors did. The defendant pleaded guilty at the earliest opportunity, had no history of violence, showed remorse, and had low chances of reoffending. Balancing these factors, the court determined that a sentence of imprisonment should be suspended in its entirety for two years and eight months, with the condition that the defendant not commit any further imprisonable offences during that period. Furthermore, the court ordered the defendant to pay $1,000 in compensation to the victim within one month.

Orders

Orders of the court

1. The offender be sentenced to imprisonment for two years and eight months.

2. The sentence of imprisonment be suspended in whole for a period of two years and eight months, during which time the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 42 of the Sentencing Act 2007 (NI).

3. The offender pay within one month the sum of $1,000 as compensation for the injury suffered by Mr Kyran Buffett, such amount to be paid into Court and the Court will thereafter disburse the funds.

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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File number:	SCC 3 of 2018
Judge:	BESANKO CJ
Date of judgment:	27 September 2019
Catchwords:	CRIMINAL LAW — where offender convicted for the offence of recklessly inflicting grievous bodily harm contrary to s 78(1) of the Criminal Code 2007 (NI) — where offender “glassed” complainant — where offender originally charged with intentionally inflicting grievous bodily harm contrary to s 77(1) of the Criminal Code — where offender pleaded guilty to recklessly inflicting grievous bodily harm CRIMINAL LAW — consideration of the appropriate sentence to be imposed — where the maximum penalty for the offence is 10 years imprisonment — where the parties correctly identified that a sentence of imprisonment must be imposed — consideration of comparable cases including Winch v R [2010] VSCA 141 and Director of Public Prosecutions v Giannoukas [2011] VSCA 296 CRIMINAL LAW — whether the sentence should be suspended in whole or in part under s 39 of the Sentencing Act 2007 (NI) — where seriousness of the offending points away from suspension — where there are a number of mitigating factors — where offender indicated guilty plea at earliest possible opportunity — where offender has no record of violence — where offender demonstrated remorse and contrition — where offender has slight chances of reoffending and good prospects of rehabilitation CRIMINAL LAW — whether the Court should make a compensation order pursuant to s 121 of the Sentencing Act
Legislation:	Criminal Code 2007 (NI) ss 77, 78 Sentencing Act 2007 (NI) ss 5, 39, 121, 142
Cases cited:	Blackwell v R [2012] NSWCCA 227 Butters v R [2010] NSWCCA 1 Director of Public Prosecutions v Giannoukas [2011] VSCA 296 The Queen v Christian (No 2) [2018] NFSC 4 Winch v R [2010] VSCA 141
Date of hearing:	26 September 2019
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Prosecution:	Ms R M O’Gorman
Solicitor for the Prosecution:	Director of Public Prosecutions
Counsel for the Offender:	Mr P Rowe
Solicitor for the Offender:	Mr W D Richards

JUDGE:	BESANKO CJ
DATE OF ORDER:	27 SEPTEMBER 2019