R v Finnegan [2020] NSWDC 956

District Court New South Wales

Medium Neutral Citation: R v Finnegan [2020] NSWDC 956 Hearing dates: 28 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Criminal Before: KING SC DCJ Decision: Convicted. Form ! matter taken into account. Special circumstances found – first time in custody, need for longer period on supervised parole to assist the offender in respect of anger management and with rehabilitation into the community. 003: Sentenced to a term of imprisonment for 4 years and 6 months comprising a NPP of 3 years to commence on 30 October 2020 and to expire on 29 October 2023, and a balance of term of 1 year and 6 months to commence on 30 October 2023 and to expire on 29 April 2025. Catchwords: CRIMINAL – Sentence – break and enter and commit serious indictable offence - AOABH, in company – hammer attack on victim – seriousness of offence – "a brutal and savage assault" - Form 1 offence - owner not disclose identity of driver - subjective matters Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Law Enforcement (Powers & Responsibilities) Act 2002 Cases Cited: R(Cth) v Petroulias (No 36) (2008) NSWSC 626 WW v R [2012] NSWCCA 165 Category: Sentence Parties: Regina Finnegan, Joshua Representation: Solicitors: CR: Ms A Pinkerton ODPP DEF: Mr L Angelovski, Astoria Lawyers File Number(s): 2019/341415

Judgment 1. HIS HONOUR: Joshua Finnigan appears for sentence in respect of an offence that between 7.15pm and 7.25pm on 26 October 2019 at Earlwood he did break and enter the dwelling house of David Lloyd, situate in Homer Street, Earlwood, and that in the said dwelling house he did commit a serious indictable offence, to wit, assault occasioning actual bodily harm in circumstances of aggravation, to wit, the said Joshua Finnigan maliciously inflicted actual bodily harm on David Lloyd. In addition, there is a further offence contained on a s 166 certificate as a related offence, being owner not disclose identity of driver. The maximum term of imprisonment in respect of the offence of aggravated break and enter is 20 years' imprisonment and there is a standard non-parole period provided by the legislation of five years. 2. The offender was committed for sentence on 9 July 2020, and it is accepted that, in the circumstances, he is entitled to a discount of 25% for the utility of the plea alone. 3. The facts are agreed and are as follows: 1. The victim, David Lloyd, and his wife, Sharon, resided in a unit in Homer Street, Earlwood. The unit was on the top level of a two‑storey building. 2. On Saturday 26 October 2019, at about 11.30am, Sharon Lloyd and Sonia Finnigan, the offender's mother, were at the unit. They consumed some alcoholic beverages. 3. At approximately 1.30pm, Sharon and Sonia attended the Marrickville Golf Club where they met the victim. The victim was already at the location, having completed a round of golf. All three consumed some alcoholic beverages at the club. 4. At approximately 3.30pm, the victim drove Sharon and Sonia back to the unit in Homer Street, Earlwood, where they consumed some more alcohol. 5. The victim retreated to his room to watch the races while Sharon and Sonia played music and danced in the lounge room. The victim asked them to turn the volume down, however they continued to play music. The victim asked them a second time to turn the music down, but they did not comply with his request. 6. The victim cooked dinner in the kitchen, and after he had eaten his meal, he was approached by Sonia. Sonia and the victim had a conversation, during which Sonia said something that offended the victim and he yelled, "Get out of my house." 7. The victim and Sonia were standing between the kitchen and the lounge room when Sonia grabbed the victim around the collar of his shirt and punched him in the face. Both Sonia and the victim started hitting each other. Sharon attempted to intervene and stop the pair from fighting by grabbing the back of the victim's head and pulling him away. In doing so, she pulled a clump of hair from her husband's head. The victim yelled at both Sharon and Sonia, "Get the fuck out of my house." 8. Sonia could not find her phone and yelled, "Where's my fucking phone? I'm not leaving here without my phone." Sonia flipped a glass coffee table in the lounge room over, causing it to smash. Sonia then pushed the large Hitachi television off the TV unit. Sharon handed Sonia her phone. 9. The victim grabbed Sonia by her shirt neck and started to lead her to the front door so that he could remove her from the residence. Sonia was yelling and screaming. The victim opened the front door of the unit with his right hand and pushed Sonia out the door. Sonia faced the victim on the other side of the doorway. Sharon then stepped in between the two. Sonia threw a punch with her right hand over Sharon and hit the victim under his left eye. The victim reacted and jabbed Sonia in the face and around the mouth and nose area with his left hand. The victim yelled at Sonia and Sharon to get out of his unit, and they subsequently left. 10. Sonia and Sharon left the unit and started walking up the driveway. Sonia took a photograph of herself using her iPhone. Within one minute Sonia's phone rang and Sharon could hear a male on the phone whom she recognised as the offender, Joshua Finnigan. Sharon heard the offender say, "What the fuck happened to you?" Sonia said, "Dave, Sharon's husband, did this to me." The offender said, "I'll be there in the minute." The phone call ended, and Sonia told Sharon that the offender would arrive any minute. 11. Sharon and Sonia walked down the driveway of the unit block. Sharon waited in the driveway while Sonia walked south on Homer Street on the western footpath. Sonia then returned to the property and stayed in the driveway of the property. It was necessary to refer to those facts because they preceded the subsequently committed offence by the offender.