R v Miller [2020] NSWDC 857

District Court New South Wales

Medium Neutral Citation: R v Miller [2020] NSWDC 857 Hearing dates: 31 August 2020 – 3 September 2020 Date of orders: 10 September 2020 Decision date: 10 September 2020 Jurisdiction: Criminal Before: Buscombe DCJ Decision: The accused is found guilty Catchwords: CRIME — Violent offences — Reckless wounding Legislation Cited: Crimes Act 1900 (NSW) ss 35(4), 418 and 419 Evidence Act 1995 (NSW) ss 38, 138 Criminal Procedure Act 1986 (NSW), s 133 Cases Cited: R v Katarzynski [2002] NSWSC 613 Mahmood v R (2008) 232 CLR 397; [2008] HCA 1 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Darren Miller (Accused) Representation: Counsel: Mr D Robinson (Crown) Mr P Butterfield (Accused)

Solicitors: Mr T Gabriel (Crown) Mr A Dikha (Accused) File Number(s): 2019/181258 Publication restriction: Nil

SENTENCE

Introduction 1. HIS HONOUR: The Accused stood trial before me, sitting without a jury, on an indictment which contained the following single count. That on 24 March 2019, at Schofields, he wounded Liam Barr and was reckless as to causing Liam Barr actual bodily harm. That is an offence under s 35(4) of the Crimes Act.

The Facts 1. The following factual matters were not in dispute in the trial. On the evening of 23 March 2019, the twenty-first birthday party of Luke Hawes was held at residential premises at 31 Bellflower Avenue, Schofields. Both the accused and the complainant, Mr Barr, attended the party that evening, along with a number of other people that they each knew. Relevantly those people included Thomas Daver; Luke Hawes; Brendan Hawes; Jeremy Hawes; Brylie Lawford the girlfriend of the complainant; Paige Sharpe, a cousin of the complainant and a former girlfriend of the accused; Lachlan Spencer; Luke Vasallo and Nathan Ward. 2. The complainant and the accused knew each other prior to the party from their schooldays. The complainant attended the party with his girlfriend and Thomas Daver. Many of the people at the party, including the complainant and the accused, consumed alcohol that evening; and a number of attendees at the party consumed very considerable quantities of alcohol. 3. Around midnight there was an incident towards the rear fence of the backyard of the premises involving the person, Thomas Daver, and other attendees at the party. The complainant came to the assistance of Mr Daver during that incident. On the evidence the accused did not actively involve himself in the incident which occurred at the rear fence of the premises, but it can be seen as a trigger for subsequent events. The complainant came to Mr Daver's assistance during that incident and moved with him, and other persons, to the front of the premises through a side-gate and proceeded to leave the premises along Bellflower Avenue. I will discuss the evidence concerning what I will term "the fence incident" shortly. 4. The accused moved from the rear premises after the complainant and Mr Daver had done so. At some point after that there was a physical interaction between the complainant and the accused. As a consequence of that physical interaction the complainant suffered a right clavicle fracture; a right temporal fracture with extension in the temporomandibular and mastoid temporal bone; an occipital laceration that breached both the epidermis and the dermis and a bifrontal cerebral contusion; and a parafalcine subdural haematoma.