R v D [2021] NSWDC 483

District Court New South Wales

Medium Neutral Citation: R v D [2021] NSWDC 483 Hearing dates: 02 and 12 July 2021 Crown written submissions: 29 June and 09 July 2021 Defence written submissions: undated Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: See [191] onwards Catchwords: CRIMINAL LAW ––– Fact finding on sentence where jury found Offender not guilty of intentionally causing grievous bodily harm and guilty of recklessly causing grievous bodily harm – Child aged between 8 and 12 weeks old at the time of the offence – Victim born with a number of congenital abnormalities – Crown asserted life-long brain injuries, retinoschisis of left eye, rib fractures, bruising and auricular haematoma to ear due to the Offender's actions – Crown asserted the injuries were caused by shaking, forceful holding and massaging the Victim as well as blunt force trauma consistent with the Victim's mother hearing a "thud" – Defence argued that the impact arising from the offending was less due to the Victim's congenital abnormalities – Left sided auricular haematoma to ear not established beyond reasonable doubt SENTENCE –– Offending found above mid-range of objective seriousness SENTENCE –– Aggravating factors –Substantial harm- – Victim vulnerable – Offence occurred in the Victim's home – Offender in position of trust and authority – Subjective factors –Offender's background cannot be characterised as deprived or dysfunctional such that the principles in R v Bugmy apply –– Offender's mental health such that the need for specific deterrence is moderated – Discount for offer to plead guilty to subject offence prior to trial – Reduction in sentence for the facilitation of the course of justice – Offender's prospects of rehabilitation found somewhat guarded and medium risk of re-offending – COVID-19 impacts on inmates – Special circumstances found Legislation Cited: Crimes Act 1900 (NSW) ss 33, 35, Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 28, 30E, 44 Crimes (Sentencing Procedure) Regulation 2017 (NSW) r 9 Cases Cited: Beavis v R [2018] NSWCCA 248 BJ v R [2018] NSWCCA 231 Bott v R [2012] NSWCCA 191 Bugmy v the Queen (2013) 249 CLR 571 DPP v De La Rosa [2010] NSWCCA 194 Droudis v R [2020] NSWCCA 322 Fisher v R [2021] NSWCA 91 Haoui v R [2008] NSWCCA 209 Hoskins v R [2021] NSWCCA 169 Kelly v R [2021] NSWCCA 173 Magro v Regina [2020] NSWCCA 25 Manocha v R [2019] NSWCCA 122 Merrick v R [2017] NSWCCA 264 MRW v R [2011] NSWCCA 260 Muldrock v R (2011) 244 CLR 120 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Oinonen v R [1999] NSWCCA 310 Perkins v R [2018] NSWCCA 62 R v AB [2011] NSWCCA 229 R v Cardoso (2003) 137 A Crim R 535 R v Do (No 4) [2015] NSWSC 512 R v Halloun [2014] NSWSC 1705 R v Hines (No 3) [2014] NSWSC 1273 R v Johnson [2003] NSWCCA 129 R v Johnson [2003] NSWCCA 129 R v Millwood [2012] NSWCCA 2 R v Qutami [2001] NSWCCA 353 R v Smith [2005] NSWCCA 286 R v Spinks [2021] NSWCCA 322 R v SS [2021] NSWCCA 56 R v SS [2021] NSWCCA 56 R v Tsiaras [1996] 1 VR 398 R v Youkhana [2004] NSWCCA 412 Regina v Borkowski [2009] NSWCCA 102 Rossall v R [2021] NSWCCA200 Tepania v R [2018] NSWCCA 247 Veen v The Queen (No 2) [1988] 164 CLR 465 Z v R [2015] NSWCCA 274 Category: Sentence Parties: Regina (the Crown) D (the Offender) Representation: Counsel: Ms E Curran (the Crown) Ms M Phelps (the Offender)