Aparicio v R [2015] NSWDC 370

District Court New South Wales

Medium Neutral Citation: Aparicio v R [2015] NSWDC 370 Hearing dates: 25 August 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed

Conviction recorded and sentence passed by the Local Court at Burwood on 9 July 2013 set aside

Released on a good behaviour bond for a period of six months Catchwords: CRIMINAL LAW – Severity appeal – Common assault – Appellant slapped the face of the son of a close friend – Prior good character – Appellant suffers chronic neuropathic pain requiring medication – Pain and medication caused lapse of character Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Alvaro Pio Reyes Aparicio (Appellant) Crown (Respondent) Representation: Mr Gow (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/156863 Publication restriction: Victim's name anonymised Decision under appeal Court or tribunal: Burwood Local Court Date of Decision: 9 July 2015 Before: Schurr LCM File Number(s): 2015/156863

Judgment 1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Schurr sitting in the Local Court at Burwood on 9 July 2015. The appellant was charged that on 3 April 2015 at Abbotsford he did assault KLG contrary to the provisions of s 61 of the Crimes Act 1900. This is the offence of common assault which, when dealt with in the Local Court, can attract a prison sentence of two years and/or a fine of $5,500. 2. The learned Magistrate recorded a conviction and fined the appellant $250. At the time of the offence the appellant was 57 years old. The victim was aged 11. The offence could be described as the appellant's slapping the victim on the right side of the victim's face with the appellant's left hand. 3. The victim's father and the accused are friends. They are both from Colombia. The victim's father has no relatives in Australia and the bond between him and the appellant is close. The victim's father and the victim's mother live apart. The victim's father has access to his son on a limited basis. The victim's father, when he visits Sydney from his usual place of residence in Queensland, often stays with the appellant at his house at Abbotsford. Sometimes the victim stayed at the appellant's house at Abbotsford with his father. 4. On Maundy Thursday 2 April 2015 after finishing school the victim went to the appellant's house to be with his father. They stayed there on that night. The plan was that they were also to stay at the appellant's house on Good Friday night after consuming a meal at the Sydney Fish Markets in the evening. During Good Friday the appellant, the victim's father and the victim left the house to walk the appellant's dogs. They went to a park. The victim was walking behind the appellant and his father seeking to play with his iPod, which apparently was malfunctioning and caused the victim to become quite upset. Both the victim's father and the appellant argued with the victim that he ought not get upset, that he ought not cry because crying was feminine behaviour which was not regarded as the done thing for males from Colombia. The victim became more upset and during the interaction between the three the appellant, slapped the victim on the right cheek. The victim became further upset, sought to leave the company of the appellant, and his father, and appealed on the telephone to his mother. The victim's time spent with his father was curtailed when the victim's mother came to collect him. The facts suggest that there may have been some manipulation by the victim of his parents to achieve his own ends. 5. The matter was not reported to the police until Saturday 11 April 2015, over a week later, and the police did not speak to the victim's father until Anzac Day 2015 and that lead to the appellant's being charged by a court attendance notice first returnable on 9 July 2015. On that day the appellant pleaded guilty and the learned Magistrate imposed the penalty to which I have referred. 6. The appellant came to Australia in 1990. He had met in San Francisco Dr Sophie Bernard whom he followed back to Australia and they married. They have two children of their own, both of whom are now adults, a daughter aged 23 and a son aged 20. Dr Bernard is a well-known general practitioner and a Master of Orthopaedics who runs a large group general practice in Five Dock. A reference from Dr Bernard is before me and attests to the appellant's being not only a man of good character but an attentive and thoughtful father to both their children and to others Dr Bernard has not known her husband over the last 25 years to have been violent towards anyone. The appellant's own son has been relatively recently diagnosed with a serious psychiatric illness which calls for his attention to his own son. 7. Not only does the evidence of Dr Bernard establish that this incident was completely out of character, so does a reference from Dr Yale Cohen of Lindfield, another medical practitioner who has known the appellant since 1990 and also Mr John Rupert Lyon‑Bowes Bernard, Dr Bernard's father who resides with the appellant and Dr Bernard, and is an Emeritus Associate Professor of Linguistics at Macquarie University. There is also a reference to much the same effect from Ms Maria Cassanita, a Justice of the Peace, who has known the appellant for over 15 years, whose son was a friend of the appellant's son and who attests to the appellant's helping train junior soccer players in the Abbotsford community. 8. The reason for this offence can be assigned to the appellant's medical condition. Perhaps in 2014 or earlier the appellant was involved in a work accident suffering a severe injury to his cervical spine. He underwent a posterior fusion as C1-C2 on 12 September 2014. More recently he has noticed the onset of low back pain, since approximately May 2015. The appellant has L4-5 spondylolisthesis and lumbar canal stenosis. 9. The appellant and his wife are well known to Dr Peter Klug, a well-known forensic psychiatrist who regularly appears before me in the Court's civil jurisdiction. Dr Klug provided the appellant with a reference. He confirms that he has known the appellant for over 20 years and describes the event as completely out of character. His reference continues thus: "He has, however, been under considerable stress by virtue of substantial problems with his general health. He suffers from an auto‑immune condition that effects both his gastro‑intestinal tract (colitis) and his spine. Recently he had a major operation on his cervical spine (neck) and he is appropriately on analgesic medication. The operation was of limited use and he continues to experience chronic neuropathic pain. I can only imagine that if he had been irritable and emotionally over‑reactive that being in pain is the likely cause. It is well known that chronic pain has a high association with significant alterations in mood. Also, I believe that his medication regime might have played a role in the situation. He has been on medication, Lyrica [pregabalin] which is prescribed for the treatment of neuropathic pain. This drug, with which I am familiar, can be associated with various side effects including, significant alterations in mood, diminished concentration and confusion. This in turn might lead to uncharacteristic behaviour, or outburst, especially if the person's pain is still not well controlled." The appellant's experience of pain from his cervical spine for which he was being medicated explains this incident which I accept was completely out of character. 1. The appellant has been in this country for 25 years and has no criminal record whatever, and as far as I know has no criminal record in his native land. The appellant seeks the benefit of s 10 and in my view this is an appropriate case in which to provide the relief sought. 2. For those reasons I allow the appeal. The conviction recorded and the sentence passed by the Local Court at Burwood on 9 July 2013 are set aside. 3. Alvaro Pio Reyes Aparicio, under s 10 of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction but having regard to your good character and health I am satisfied that it is expedient to release you on a good behaviour bond. I order that you be released on a good behaviour bond for a period of six months from today. Conditions of the bond are as follows: 1. you are to appear before the Court if called upon to do so at any time during the term of the bond; 2. you are to be of good behaviour; 3. you are to reside at [XX XX XX]; or. 4. you are to advise the Registrar of this Court by prepaid Registered Post of any change of residential address during the term of the bond.