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District Court 18 March 2021

R v Maher, Trevor Wayne; R v Maher, Troy Patrick

[2021] NSWDC 80

Assault & violence
SENTENCING MITIGATING FACTORS

Citation: R v Maher, Trevor Wayne; R v Maher, Troy Patrick [2021] NSWDC 80
Court: District Court of New South Wales
Date: 18 March 2021
Judge(s): Yehia SC DCJ

Background

Two brothers, Trevor and Troy Maher, each pleaded guilty to separate offences of causing grievous bodily harm (GBH) to a victim, John Jarrett, following an incident at a residential address in South Lismore on 9 December 2019. The brothers attended the premises partly to purchase drugs and partly because they believed the victim had broken into Troy's home and stolen his property. A confrontation ensued in which the victim armed himself with a hammer and chased Trevor out of the house. Trevor then armed himself with a hockey stick and struck the victim repeatedly, causing serious injuries.

Trevor faced the more serious charge: intentionally causing GBH under s 33(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum of 25 years imprisonment and a standard non-parole period of seven years. Troy faced the lesser charge of causing GBH while reckless as to actual bodily harm, in company, under s 35(1) of the same Act, carrying a maximum of 14 years and a standard non-parole period of five years.

Both offenders disputed certain factual matters alleged by the Crown, requiring the court to resolve those disputes on the evidence before proceeding to sentence. The judgment also grappled extensively with the relevance of each offender's deeply disadvantaged background, including exposure to childhood domestic violence and the intergenerational trauma flowing from their mother's membership of the Stolen Generations.

  • What facts were established on the evidence, given the victim did not attend to give evidence and the offenders' accounts diverged from the Crown's version in key respects?
  • What weight should be given to each offender's background of deprivation and disadvantage, including childhood exposure to domestic violence and intergenerational trauma linked to the Stolen Generations, as mitigating factors in sentencing?
  • What discount applied to each offender's sentence for the utilitarian value of their guilty pleas, given the different stages at which those pleas were entered?
  • Whether special circumstances existed warranting a departure from the standard ratio between non-parole period and balance of term.

Decision

The court resolved the disputed facts primarily on the basis of the sworn evidence given by each brother, tested in cross-examination, and the inferences available from the circumstances. The court found that both offenders attended the premises angry about the alleged break-in, intending to confront the victim, and aware he might be present. Trevor's account of being attacked first with a hammer was accepted in its broad outline, though the court found that once he had armed himself with the hockey stick and the immediate threat had passed, he continued to strike the victim well beyond any reasonable response. Troy's participation was found to constitute encouragement and readiness to assist, satisfying the elements of joint criminal enterprise, despite his not physically striking the victim.

The court applied the principles in Bugmy v The Queen [2013] HCA 37, confirming that background deprivation and disadvantage does not diminish with time and retains relevance at each sentencing, however serious the offence. The judgment drew extensively on the Bugmy Bar Book, particularly the chapters on the Stolen Generations and childhood exposure to domestic and family violence, to explain the documented psychological and developmental consequences of intergenerational trauma. The court accepted that the offenders' mother was a member of the Stolen Generations, that both brothers were exposed to severe domestic violence throughout childhood, and that these circumstances contributed meaningfully to the patterns of behaviour, substance dependency, and impaired self-regulation that featured in the offending.

Despite the mitigating force of this background, the court was clear that the serious nature of the injuries inflicted on the victim, and the purposes of punishment, deterrence, and community protection, remained weighty considerations. The tension between acknowledging systemic disadvantage and imposing sentences that reflected objective seriousness was expressly identified as a feature of the case.

Trevor received a discount of 25% for the utilitarian value of his plea, on the basis that he had offered to plead guilty to the same charge in the Local Court, albeit conditionally. Troy received a discount of 10%, reflecting his plea at the Lismore Super Call Over with no prior offer in the Local Court. The court found special circumstances in both cases, justifying an extended balance of term to allow for supervised rehabilitation and post-release support.

Orders Made

  • Trevor Maher: Sentenced to a non-parole period of 4 years commencing 10 December 2019 and expiring 9 December 2023, with a balance of term of 4 years; total sentence of 8 years imprisonment. Recommendation that a psychological report with post-release treatment plan be placed on his case file.
  • Troy Maher: Sentenced to a non-parole period of 3 years commencing 10 December 2019 and expiring 9 December 2022, with a balance of term of 3 years; total sentence of 6 years imprisonment. Recommendation that a psychological report with post-release treatment plan be placed on his case file.
  • Both offenders declared eligible for parole at the expiration of their respective non-parole periods, subject to supervision by Community Corrections.

Key Takeaways

  • The District Court confirmed, applying Bugmy, that a background of serious deprivation and disadvantage remains a relevant mitigating factor regardless of the gravity of the offence, and does not lose its weight simply because time has passed or prior offences exist.
  • Intergenerational trauma arising from a parent's membership of the Stolen Generations is a recognised, evidence-based consideration in sentencing, capable of being established through material such as the Bugmy Bar Book and expert psychological evidence.
  • Childhood exposure to domestic and family violence was treated as a discrete and significant mitigating factor, supported by the documented research in the Bugmy Bar Book on its psychological consequences for development, self-regulation, and substance use.
  • A conditional offer to plead guilty in the Local Court to the same charge ultimately prosecuted may still attract a meaningful plea discount (here, 25%), even where the offer was not accepted, provided the Crown concedes the point is fairly open.
  • Special circumstances warranting adjustment of the non-parole period ratio may be found where an offender has complex rehabilitation needs and limited prior exposure to structured support, particularly where background disadvantage has been a persistent feature of their life.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(d), 25D

Cases
- Bugmy v The Queen [2013] HCA 37
- R v Mitchell [2007] 177 A Crim R 94
- R v Zhang [2004] NSWCCA 358
- Siganto v The Queen (1998) 194 CLR 656

Other Materials
- Bugmy Bar Book, Aboriginal and Torres Strait Islander Stolen Generations and Descendants (January 2020), Public Defenders NSW
- Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2019), Public Defenders NSW