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District Court 5 April 2011

HAYMAN, Scott v R

[2011] NSWDC 109

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL BREACH OF APPREHENDED VIOLENCE ORDER EXTENUATING CIRCUMSTANCES CHILD WITH SERIOUS MEDICAL CONDITION INVITED TO PREMISES BY PROTECTED PERSON

Citation: HAYMAN, Scott v R [2011] NSWDC 109
Court: District Court of New South Wales
Date: 5 April 2011
Judge: Cogswell SC DCJ

Background

The appellant and the protected person under an apprehended violence order (AVO) were parents of three young children, including seven-year-old twins and an older child with a serious undiagnosed medical condition. On 21 September 2010, following three days at Westmead Children's Hospital seeking a diagnosis for their eldest child, the couple returned to the protected person's home in Bomaderry. The protected person invited the appellant inside to care for the children while she went shopping, despite an AVO prohibiting him from coming within 100 metres of the premises.

Shortly after their arrival, one of the twins suffered an asthma attack, prompting the protected person to call triple zero. Police attended in response to that call and found the appellant at the address, leading to a charge of breaching the AVO. The protected person later returned from shopping and expressed frustration with police about the enforcement action taken.

At Nowra Local Court, Magistrate Fleming convicted the appellant and imposed a seven-month term of imprisonment, suspended on condition he enter into a good behaviour bond. The appellant appealed that sentence to the District Court.

  • Whether the circumstances surrounding the AVO breach were sufficiently extenuating to warrant a dismissal of the charge under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, rather than a sentence of imprisonment (albeit suspended)
  • Whether the District Court, hearing the appeal afresh, should exercise its discretion differently from the sentencing Magistrate

Decision

Cogswell SC DCJ reheard the matter afresh, as is required on a sentence appeal from the Local Court to the District Court. His Honour heard oral evidence from the appellant, who described the exhausting three-day hospital visit, the medical emergency involving the asthmatic twin, and the protected person's explicit consent to his presence at the premises.

His Honour accepted that the appellant had historically demonstrated anger management difficulties and had three prior AVO breach convictions from 2007, and that the AVO existed for legitimate protective reasons. The Crown argued that the primary extenuating circumstances arose only after the appellant had already committed the offence by entering the premises, and that the suspended imprisonment term was appropriate as a mark of denunciation.

Notwithstanding those considerations, his Honour found that the totality of circumstances was genuinely extenuating. The three-day ordeal at Westmead, the late evening return with three young children, the protected person's active consent, the subsequent medical emergency, and the protected person's request that the appellant remain while she shopped all combined to justify the exercise of discretion in the appellant's favour.

His Honour accordingly set aside the Magistrate's sentence and substituted a dismissal of the charge under s 10(1)(a), recording a finding of guilt without proceeding to conviction.

Orders Made

  • The sentence imposed by the Local Court Magistrate was set aside under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001
  • The appellant was found guilty of the AVO breach
  • The charge was dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, meaning no conviction was recorded

Key Takeaways

  • The District Court confirmed that on a sentence appeal from the Local Court, the District Court hears the matter entirely afresh, considers the original papers, and may receive new evidence before forming its own independent view on sentence.
  • A s 10(1)(a) dismissal remains available for AVO breach offences where extenuating circumstances are established, even where the defendant has prior convictions for the same type of offence.
  • Extenuating circumstances are not limited to events occurring at the moment of the offence. The District Court treated circumstances commencing several days before the breach as part of the relevant context.
  • The protected person's consent to the accused's presence at the premises, while not a defence to an AVO breach, was treated as a relevant factor in assessing whether extenuating circumstances warranted a s 10 order.
  • Prior criminal history, including past AVO breaches, does not automatically preclude a s 10 dismissal; the sentencing court retains discretion to weigh that history against the particular circumstances of the offence before it.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)

Cases cited: None cited in the judgment.