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District Court 30 October 2020

R v Finnegan

[2020] NSWDC 956

Assault & violenceTheft & property
CRIMINAL SENTENCE AOABH, IN COMPANY HAMMER ATTACK ON VICTIM SERIOUSNESS OF OFFENCE “A BRUTAL AND SAVAGE ASSAULT”

Citation: R v Finnegan [2020] NSWDC 956
Court: District Court of New South Wales
Date: 30 October 2020
Judge: King SC DCJ

Background

The offender, Joshua Finnegan, appeared for sentencing after pleading guilty to aggravated break and enter and commit a serious indictable offence, namely assault occasioning actual bodily harm in company. The offence arose from a violent confrontation at a residential unit in Earlwood on the evening of 26 October 2019.

The events were triggered by an altercation between the victim, David Lloyd, and the offender's mother, Sonia Finnigan, at the victim's home. After Sonia was removed from the unit, she contacted the offender by phone. Within minutes, the offender arrived at the property armed with a hammer approximately 40 centimetres in length. Three other unidentified males also arrived in a separate vehicle.

The offender used the hammer to strike the front door of the victim's unit before confronting the victim directly. When the victim opened the door, he was immediately struck in the face and then struck again to the back of the head, causing him to lose consciousness. The victim sustained serious injuries including a traumatic subarachnoid haemorrhage (bleeding in the brain), multiple facial fractures, and multiple rib fractures. He was hospitalised for four days. A related offence of "owner not disclose identity of driver" was taken into account on a Form 1 basis.

  • What sentence was appropriate for the principal offence of aggravated break and enter and commit a serious indictable offence, given the objective seriousness of a premeditated hammer attack on a person in his own home?
  • What discount applied to the sentence in light of the guilty plea?
  • How should the Form 1 offence (owner not disclose identity of driver) be treated in sentencing?
  • What weight should be given to the offender's subjective circumstances?

Decision

The District Court characterised the assault as "a brutal and savage attack." The offender had armed himself with a hammer and attended the victim's home with other males in what the court treated as a retaliatory, premeditated attack. The victim's injuries were severe, encompassing brain bleeding, facial bone fractures, and multiple rib fractures.

The court applied a 25% discount to the sentence to reflect the utilitarian value of the guilty plea, the offender having been committed for sentence on 9 July 2020. The standard non-parole period for the principal offence (aggravated break and enter) is five years, with a maximum term of 20 years imprisonment under the Crimes Act 1900.

The court took the Form 1 offence (owner not disclose identity of driver) into account when sentencing on the principal charge. The judge also noted that the sentence for any additional offence was made entirely concurrent with the principal sentence, meaning it did not increase the total term imposed.

The judgment also contains a notable exchange in which the judge admonished the prosecutor for repeated errors in the Crown bundle across two matters heard that day. The judge observed that such errors risk causing sentencing mistakes that can ground successful appeals in the Court of Criminal Appeal.

Orders Made

• Three-month sentence imposed for the s 166 offence (offence of owner not disclosing identity of driver)
• Sentence made entirely concurrent with the sentence for aggravated break and enter and commit serious indictable offence
• Form 1 matter taken into account in sentencing rather than the s 166 certificate

Key Takeaways

  • The District Court treated a premeditated, weapon-assisted break and enter resulting in serious head and bodily injuries as a matter of high objective seriousness, describing the assault as "brutal and savage."
  • A guilty plea entered at the committal-for-sentence stage attracted a 25% discount, reflecting its utilitarian value rather than any indication of remorse at an earlier point in proceedings.
  • Where a Form 1 offence is taken into account at sentencing, it is folded into the sentence for the principal offence rather than attracting a separate, cumulative term.
  • Under the Crimes Act 1900, the offence of aggravated break and enter and commit a serious indictable offence carries a maximum of 20 years imprisonment and a standard non-parole period of five years.
  • Errors in Crown sentencing bundles drew a direct rebuke from the District Court, with the judge warning that inaccuracies in custody calculations or procedural certificates can generate grounds for appeal in the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- R (Cth) v Petroulias (No 36) (2008) NSWSC 626
- WW v R [2012] NSWCCA 165