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District Court 18 December 2024

R v Foxman

[2024] NSWDC 688

Assault & violence
CRIME SENTENCE DISPUTED FACTS HEARING WHETHER S 10 AVAILABLE TO OFFENDER 55 YEAR OLD MAN OF PRIOR GOOD CHARACTER NO CONVICTION RECORDED

Citation: R v Foxman [2024] NSWDC 688
Court: District Court of New South Wales
Date: 18 December 2024
Judge: Neilson DCJ

Background

The offender, a 55-year-old man with no prior criminal history, pleaded guilty to entering the dwelling house of his neighbour armed with a baseball bat, intending to commit assault occasioning actual bodily harm (AOABH). The offence occurred on 14 September 2022 at St Ives, where the two men had been neighbours for several years and had a well-documented history of mutual animosity.

On the morning of the offence, the offender armed himself with his son's baseball bat and entered the neighbour's open garage. He struck the victim multiple times on the legs and attempted a swing at the victim's head, which the victim managed to block. The resulting injury was relatively limited: a 2-centimetre laceration to the left shin requiring three stitches, along with bruising and swelling. A reckless wounding charge under s 35(4) of the Crimes Act 1900 was included on a Form 1 (a document listing related offences to be taken into account at sentencing without additional conviction).

The sentencing proceedings extended across three hearings because the parties could not agree on all relevant facts, requiring the court to conduct a disputed facts hearing. The court ultimately resolved the disputed facts in favour of the offender.

  • Whether a non-conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999 was available for an offence as serious as aggravated home entry, which carries a maximum penalty of 14 years imprisonment.
  • How to assess objective seriousness in light of the disputed facts, including the circumstances of the offending and the degree of harm caused.
  • Whether the presence of the offender's teenage son during the attack constituted an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999.
  • What discount to apply for the guilty plea.
  • What weight to give mitigating factors, including the offender's age, health, mental condition, prior good character, and the history of provocation by the victim.

Decision

After resolving the disputed facts in the offender's favour, Neilson DCJ assessed the objective seriousness of the principal offence as sitting below the mid-range. The court acknowledged that the offending was serious on its face: the offender deliberately armed himself, entered his neighbour's property uninvited, and struck the victim repeatedly with a bat. However, the injury actually sustained was relatively minor, and the surrounding context of sustained neighbourly conflict and prior provocative conduct by the victim was treated as relevant to the overall picture.

The court accepted a full 25% discount for the early guilty plea. The offender's subjective circumstances were substantial: no prior offences, good character references, ongoing psychological treatment, age, and health issues. The court also accepted evidence of significant stress arising from the long-running dispute with the victim.

On the question of the son's presence, Neilson DCJ accepted the Crown's submission that this was an aggravating factor. The offender had involved his then-16-year-old son by calling him back to retrieve the bat, and the son would have witnessed the assault. The court acknowledged some tempering consideration, given the son's awareness of the longstanding conflict, but found the aggravation was nonetheless established.

Weighing all factors, the court found it was appropriate to exercise the discretion under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to release the offender on a Conditional Release Order (CRO) without recording a conviction. The court was satisfied that the combination of the offender's prior good character, age, health, mental condition, and the extenuating circumstances of the offence made a non-conviction outcome appropriate.

Orders Made

  • The offender released on a Conditional Release Order (CRO) for two years under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, without conviction.
  • Conditions of the CRO:
  • Not to commit any offence during the order period.
  • To appear before the court if called upon during the term of the CRO.
  • To continue attending counselling with a nominated psychologist until she determines no further counselling is needed.
  • To attend a nominated general practitioner every second month and take any prescribed antidepressant medication.
  • To submit to supervision by a Community Corrections officer.
  • To complete an anger management course.
  • To report to the Community Corrections office at Hornsby within 7 days.

Key Takeaways

  • A s 10 non-conviction order remains available even for serious offences carrying lengthy maximum penalties, provided the sentencing court is satisfied that the offender's character, circumstances, and the nature of the offence together make such a disposition appropriate.

  • Disputed facts in sentencing proceedings must be resolved in favour of the offender where the Crown has not established them to the requisite standard, and this can materially affect the assessment of objective seriousness.

  • The District Court confirmed that involving a child, even a teenager with some knowledge of the underlying dispute, in circumstances where that child will witness parental violence constitutes an aggravating factor under the sentencing legislation.

  • A full 25% guilty plea discount applied because the plea was entered at the first available opportunity, consistent with the approach in cases such as R v Nguyen [2002] NSWCCA 183.

  • Sustained neighbourhood conflict and a history of provocative conduct by the victim can form part of the extenuating circumstances relevant to a s 10 determination, even where the offender was the physical aggressor on the day.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 112(2), 556A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10(1)(b), 21A(2)(eb)

Cases:
- R v Nguyen [2002] NSWCCA 183
- R v Paris [2001] NSWCCA 83
- R v Piccin (No 2) [2001] NSWCCA 323
- Stevens v Regina [2017] NSWCCA 216