R v Kihara [2020] NSWDC 88

District Court New South Wales

Medium Neutral Citation: R v Kihara [2020] NSWDC 88 Hearing dates: 19 March 2020 Decision date: 02 April 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [64] Catchwords: Detain with intent to obtain advantage and occasion actual bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Diaz v R [2018] NSWCCA 33 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Johnson v R [2016] NSWCCA 286 R v Newell [2004] NSWCCA 183 Category: Sentence Parties: Director of Public Prosecutions (Crown) Jimm Wallace Kihara (Offender) Representation: Counsel: T D Anderson (Offender)

Solicitors: N Leach (Crown) File Number(s): 19/20978 Publication restriction: Nil

REMARKS ON SENTENCE 1. The offender is being sentenced in respect of an offence pursuant to s 86(2)(b) of the Crimes Act 1900 of detain with intent to obtain advantage and occasion actual bodily harm. The maximum penalty for the offence is 20 years imprisonment and there is no Standard Non-Parole Period proscribed. 2. The offence occurred on 20 January 2019. The offender was arrested the same day and has been in custody since that date. At the time of the offending he was on bail in respect of two other charges.

The sentence hearing 1. The sentence hearing took place on 19 March 2020. The Crown sentence summary became Ex A and contained an Agreed Statement of Facts which may be summarised as follows. 2. The offender, who was born in February 1973, resided in Department of Housing premises at Redfern. His unit was a one bedroom unit on the first floor, with a balcony overlooking a car park. 3. The victim lived nearby, and had known the offender for approximately 12 months. 4. Sometime prior to 20 January 2019, the offender's guitar was stolen and he suspected it was the victim who had stolen it. On Sunday 20 January 2019, the offender had been consuming alcohol throughout the day and was returning home at approximately 8.30pm. He was extremely affected by alcohol and on his journey he met the victim who decided to give him assistance in returning home. 5. Once inside the offender's unit, the victim and the offender had a cigarette and then the offender offered the victim a cup of tea or coffee, which she declined. He then walked to the front door and locked the dead bolt from the inside. The victim asked, "What are you doing?", to which the offender replied, "Nothing". The offender locked the door and detained the victim for the purposes of eliciting information about the whereabouts of his guitar, as he believed that she was withholding information about it. The victim went to the kitchen and the offender approached her with a wooden chair and smashed it over her head. There ensued a scuffle in the kitchen until the victim ran out onto the balcony and started yelling for help. 6. The offender followed the victim to the balcony and was observed by a neighbour to bear-hug the victim. She was heard to be yelling, "Help, help help me! Please stop, I will tell you, stop", "I will take you to it, I will take you to it. Please, please". 7. Neighbours observed the offender to be holding a metal object above his head and heard the victim yelling, "Put it down!", "Put it fuckin' down!". 8. The offender then pushed the victim towards the balcony. She was bent over the balcony facing the car park. She was very distressed, and was crying and yelling, "Please stop". At this point, multiple neighbours called 000 to report what was happening. The offender then picked the victim up and threw her over the balcony to the concrete below, a distance of 5.4 metres. The victim landed on the right-hand side of her body. She was unconscious and lay motionless for a couple of minutes. 9. The offender left his unit and the property and was arrested when he returned at approximately 10pm. He was still heavily intoxicated and accused the victim of stealing his guitar on numerous occasions to the arresting officers. The offender also attempted to divert attention from himself by saying that he had been told that someone fell from the balcony and that he was just "coming to check it out". When being led away to a police vehicle, the offender was heard to say, "I wanted to kill her". He also told police that he had been in a mental hospital for 12 months. 10. Upon a search of the offender's premises, investigating police found a partially broken wooden chair, together with a number of the victim's items. Located near the victim on the concrete car park was a metal meat cleaver. 11. The victim was taken to hospital and underwent a CT scan which revealed: 1. Right 5th and 6th anterior rib fractures. 2. Right 7th and 8th posterior rib fractures, and 3. A right L4 transverse process fracture. 1. Treating doctors also opined that there may be an undisplaced fracture of the inferior orbital nerve. Otherwise the victim suffered no life threatening injuries, acute intra-cranial haemorrhage, aortic injury or solid organ lacerations. She was discharged from hospital the following day and thereafter attended another hospital seeking treatment for her injuries, but was advised to rest and recover at home. 2. Exhibit A also included the criminal antecedents of the offender. They dated back to 1995 and included numerous traffic offences, possessing prohibited drugs, violence offences including assault occasioning actual bodily harm and common assault, offences of dishonesty including stealing, public nuisance offences including wilful and obscene exposure in/near public place/school and behave in offensive manner in/near public place/school, and custody of a knife in a public place. 3. The criminal history supports a lacuna in his criminal offending between 2004 and 2008, however, thereafter it records a continual trail of similar offending, namely, offences of dishonesty, violence, custody of knives and possession of prohibited drugs, as well as public nuisance offences. A range of non-custodial sentences were imposed on the offender until 2013 when he was sentenced to imprisonment for nine months on two offences of aggravated indecent assault, and one count of assault with act of indecency, each suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").