District Court New South Wales Medium Neutral Citation: HAYMAN, Scott v R [2011] NSWDC 109 Decision date: 05 April 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: I determine this appeal against sentence by setting aside the sentence of the learned Magistrate. Instead of that sentence, under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, I find Mr Hayman guilty of the offence and I make an order directing the charge be dismissed. Catchwords: CRIMINAL LAW - sentence appeal - breach of apprehended violence order - extenuating circumstances - child with serious medical condition - invited to premises by protected person Legislation Cited: Crimes (Appeal and Review) Act 2001 s 20(2)(a) Crimes (Sentencing Procedure) Act 1999 s 10(1)(a) Category: Principal judgment Parties: Regina Scott Hayman Representation: Mr Steward for Mr Hayman Mr Taylor for the Director of Public Prosecutions File Number(s): 2010/314598 Decision under appeal Date of Decision: 2010-11-05 00:00:00 Before: Magistrate Fleming Judgment 1. Scott Hayman and Kristy Hite have three children. They are presently aged seven and three. The three year olds are twins. 2. On 21 September last year they had just got back to Bomaderry after spending three days in Sydney attending to the medical needs of their eldest, Lilly. They got back to the house where Ms Hite lived with the three children and Mr Hayman helped getting the three children into the house and then looked after them because Ms Hite asked him to whilst she did some shopping. The problem with that arrangement was that there was an apprehended violence order in place which prohibited Mr Hayman from being within 100 metres of that house in Bomaderry. 3. The police arrived and charged him with the offence of being in breach of the apprehended violence order. When he went to Nowra Local Court on 5 November 2010 her Honour Magistrate Fleming convicted him of the offence and sentenced him to seven months imprisonment but suspended the sentence on condition that he enter into a bond. Mr Hayman has appealed to this Court from that sentence. 4. When a person appeals to the District Court from a sentence imposed by a Local Court Magistrate the District Court Judge hears the case afresh. He or she reads the papers before the Magistrate and hears any new evidence which is tendered. The Judge then makes up his or her own mind as to what the appropriate sentence should be. 5. In this case Mr Steward of counsel, who appears for Mr Hayman, called his client. His client explained about the three days that he and Ms Hite had had in Sydney arranging for Lilly to go through a battery of tests. They had to go to Westmead Children's Hospital and were seeking a diagnosis for a condition which has required surgery in the past for this seven year old. They got back to Bomaderry at about half past seven or eight. 6. Mr Hayman knew that he was not allowed to be within 100 metres of the house but Ms Hite agreed to him being there in order to help with the children. She also wanted to go and do some shopping and had asked him to look after them. 7. As it happened, when they arrived one of the twins, Jezzabella, had an asthma attack and the right treatment could not be immediately found. That prompted Ms Hite to ring triple-0 for assistance. In the meantime the medication was found and Jezzabella settled down so Ms Hite went off to do the shopping. But then the police turned up in response to the triple-0 call. They realised that Mr Hayman should not have been there. This was confirmed when Ms Hite returned sometime later and got upset with the police for their concern over Mr Hayman breaching the apprehended violence order. 8. The police, nevertheless, charged Mr Hayman. Mr Hayman acknowledged that Mr Hayman and Ms Hite have been in a relationship for about nine years and Mr Hayman acknowledged that he had in the past an anger management problem and a drug problem. He has done a number of courses to assist his anger management and his drug problems are now significantly reduced and he is working on eliminating the last issues. Mr Hayman impressed me as a person who was sincere in what he was saying. 9. In cross-examination by Mr Taylor, who appeared for the respondent Director of Public Prosecutions, Mr Hayman acknowledged that he had a serious temper in the past and that the apprehended violence order was in order to control him and protect Ms Hite. He said that despite their relationship being much better than it had been in the past they still lived separately and are actively working on their relationship. Mr Taylor cross-examined him on three occasions in 2007 when he was convicted of breaching the apprehended violence order taken out by Ms Hite. He acknowledged to Mr Taylor that he knew that he was in contravention of the order when he was at the house. 10. Mr Steward asks for me to dismiss the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999. He says that the extenuating circumstances of the offence would justify that course. He points to the three days that the couple had in Sydney, the consent of Ms Hite, the medical needs of the child who had the asthma attack and the need for Ms Hite to do the shopping for herself and the children. The extenuating circumstances commenced some days beforehand and continued up to the time of the offence. 11. Mr Taylor argues that the main extenuating circumstances occurred at the scene and Mr Hayman had already committed the offence at that stage. In other words he should not have been there in the first place. He also referred to some evidence of Mr Hayman which suggested that Ms Hite was manipulative in taking out the apprehended violence order in the first place and maintaining it. Mr Taylor correctly referred to the three convictions in 2007 and argued that the sentence of imprisonment, even though it was suspended, was appropriate and had a greater impact as a denunciation of the conduct and was an appropriate sentence within the range. 12. In my opinion this case does warrant an order under s 10 of the Crimes (Sentencing Procedure) Act . Specifically I accept Mr Steward's submission that the offence was committed in quite extenuating circumstances. As he says, the offence occurred just after the gruelling three days when their eldest child was going through a battery of tests for a serious condition. Mr Hayman should not have been at the premises but it was 7.30 or 8 o'clock at night, there were three young children and Ms Hite agreed to him being there. There was then a medical emergency which settled but Ms Hite still asked him to wait while she did the shopping for her and the children. I regard these circumstances as extenuating and they warrant the exercise of my discretion. 13. Accordingly I am going to allow the appeal and the formal order which I make is this: under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the learned Magistrate. Instead of that sentence, under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 I find Mr Hayman guilty of the offence and I make an order directing that the relevant charge be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2011