REGINA v BAUGH [1999] NSWCCA 131

New South Wales Court of Criminal Appeal CITATION : REGINA v BAUGH [1999] NSWCCA 131 FILE NUMBER(S) : CCA 60798/98 HEARING DATE(S) : 27/05/99 JUDGMENT DATE : 27 May 1999

PARTIES : Stuart William BAUGH JUDGMENT OF : Spigelman CJ at 1; Greg James J at 57; Smart AJ at 58

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0413 LOWER COURT JUDICIAL OFFICER : Hosking DCJ

COUNSEL : D N Howard / M Hall (Crown) A M Webb (Respondent) SOLICITORS : C K Smith (Crown) T A Murphy (Respondent) CATCHWORDS : CRIMINAL LAW; sentencing; Crown appeal; assault occasioning actual bodily harm; appropriate sentence; expression of remorse ACTS CITED : Crimes Act 1900 (NSW) DECISION : Allow the appeal; Quash the sentence; Sentence the respondent to a term of two years to be served by way of Periodic Detention commencing on Friday 4 June 1999.

IN THE COURT OF

CRIMINAL APPEAL 60798/98

SPIGELMAN CJ GREG JAMES J SMART AJ

Thursday 27 May 1999

REGINA v Stuart William BAUGH

The respondent was convicted of assault occasioning actual bodily harm however the trial judge deferred sentencing the respondent on the condition that he enter a recognisance to be on good behaviour for three years. The respondent had served one year and two days in maximum security before sentence. The assault occasioning the injuries from which the victim died was a single punch by the respondent which caused the victim to fall hitting his head on a concrete floor.

Held Looking at the whole of the objective and subjective circumstances, especially the conduct of the respondent in seeking out the altercation administering the blow and the very substantial injury that flowed from this, the final outcome of an effective penalty of one year imprisonment and the risk of further sentencing was manifestly inadequate. Consideration of remorse. The persistence in a false assertion of self-defence is wholly inconsistent with an assertion of remorse even if the Crown indicated it would not accept a plea to a lesser charge.