LYNCH v R [2007] NSWCCA 268

New South Wales Court of Criminal Appeal

CITATION: LYNCH v R [2007] NSWCCA 268

HEARING DATE(S): 8 August 2007

JUDGMENT DATE: 4 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 21; Harrison J at 22

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – assault, malicious damage to property and use of offensive instrument – application to tender medical evidence not before sentencing court – reports available at the time of sentence hearing and reports not available – whether evidence should be received – whether counsel failed to seek evidence now available

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Deng [2007] NSWCCA 216

PARTIES: David Brian Lynch (Appl) The Crown

FILE NUMBER(S): CCA 2007/3219

COUNSEL: I Todd (Appl) N Adams (Crown)

SOLICITORS: AKN & Associates (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0049

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 1 August 2006

IN THE COURT OF CRIMINAL APPEAL 2007/3219

McCLELLAN CJ at CL HOWIE J HARRISON J

TUESDAY 4 SEPTEMBER 2007 LYNCH, David v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to three charges as follows: · On 9 September 2004 at Sussex Inlet in the State of New South Wales did assault Shane Botterill. · On 9 September 2004 at Sussex Inlet in the State of New South Wales did maliciously damage property, namely, the dwelling house at 14 Glanville Road. · On 9 September 2004 at Sussex Inlet in the State of New South Wales did use an offensive instrument, namely a motor vehicle, with intent to commit a serious indictable offence, namely intimidation. 2 The first charge was an offence contrary to s 61 of the Crimes Act and carries a maximum penalty of 2 years imprisonment. The second charge was an offence contrary to s 195(1)(a) of the Crimes Act for which the maximum penalty was 5 years imprisonment. The third charge was an offence contrary to s 33B of the Crimes Act for which the maximum penalty is 12 years imprisonment. 3 In relation to the third charge an offence of breach of an apprehended violence order was included on a Form 1 and taken into account by the sentencing judge. 4 In relation to each of counts 1 and 2 the applicant was sentenced to a fixed term of imprisonment of 9 months the sentences to be served concurrently. The sentencing judge declined to set a non-parole period because of the more lengthy sentence imposed in relation to count 3. In relation to that count the applicant was sentenced to a non-parole period of 1 year and 3 months with a total term of 2 years and 6 months imprisonment.