R v Nixon (No 2) [2025] NSWDC 554 | Case summary | Zoe

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R v Nixon (No 2) [2025] NSWDC 554 | Case summary | Zoe

In late 2021 the offender and the complainant, Luke Ellis, were acquainted. They had both previously been inmates at the same Correctional Centre. After both men had been released, Nixon was residing in Wagga Wagga. Ellis lived in Sydney but regularly visited the Wagga Wagga region. Ellis would occasionally call past the offender’s home.
On 25 February 2022, Mr Ellis and a Ms Janice Hearn called into the offender’s home on their way to Sydney. It was early evening when they arrived, and the offender was at home with his partner Tina Brown, also known as Tina Williams.
Mr Ellis and Ms Hearn stayed for some indeterminate period of time and shared a few drinks with the offender and Ms Brown. At some stage it appears that Ms Hearn and Mr Ellis left the apartment with the intention of sleeping in their car at a nearby camping/rest area before driving to Sydney. They soon changed their minds and went back to the offender’s home to ask if they could sleep there and use the bathroom.
From this point the accounts given at the trial diverged significantly. What is clear is that at some time after Mr Ellis and Ms Hearn returned to the apartment, an argument broke out following which the offender punched Mr Ellis on his left upper cheek, causing a nasal bone fracture and knocking him to the floor. Mr Ellis was unconscious for a number of minutes. Mr Ellis and Ms Hearn departed the apartment. They then slept in the vehicle. The following morning, when Ellis awoke, Ms Hearn had departed. In due course he drove himself back to Sydney. He stayed at his mother’s home for more than a week during which time he complained of pain in his neck and apparently bad headaches. In due course he attended hospital where he was advised he had a subdural haematoma that had been bleeding for about a week, and that if he did not have it evacuated immediately, he could die. Following this diagnosis, he underwent a mini-craniotomy to evacuate the subacute right subdural haematoma. Consistent with my findings in the verdict judgment, I am satisfied that the injury was sustained as a consequence of the victim’s head striking the floor following a punch from Mr Nixon.
Mr Ellis and Ms Hearn’s evidence was broadly consistent in that there was an argument between the offender and Ms Brown over a missing item which seemed to be a missing bag of drugs. Mr Ellis said the offender and Ms Brown accused him of taking the drugs. Ms Brown said, “Get him Owen”, and then the offender punched him.
Ms Hearn said that she did not see the start of the altercation, but heard an argument and heard Ms Brown say something immediately before the offender punched Mr Ellis.
Ms Brown and the offender’s evidence was effectively that Mr Ellis was behaving aggressively towards Ms Hearne and Ms Brown, and when the offender either asked him to stop or intervened, Mr Ellis threw a punch at the offender. The offender’s return punch was therefore said to be an act of self-defence. Ms Brown and the offender’s evidence differed as to whether Ms Hearn was present at the time of the altercation or not, and whether the intervention was to prevent an assault by Mr Ellis on Ms Brown or Ms Hearn.
As outlined in my verdict judgment, I am satisfied beyond reasonable doubt that the accused did not act in self-defence, and that the punch was unprovoked by anything other than some form of suspicion by the offender towards Mr Ellis.
As I have said, Mr Ellis was knocked unconscious either by the punch or his head striking the floor. When he awoke after several minutes he said that he felt nauseous. He was then assisted from the unit by Ms Hearn and the offender. Ms Hearn described that it took 10-15 minutes to wake Mr Ellis, and that when he sat up he was drooling from his mouth, and later vomiting.
Police later attended but appear to have been more concerned with the offender and Ms Brown’s loud argument which had escalated and which led to the offender being charged with resisting arrest at that time.

In determining the offender’s subjective circumstances the Court was assisted by a psychological record under the hand of Vanessa Edwige dated 7 November 2024; an account of child sexual assault given by the offender to Dr Shannon Paisley dated 15 March 2023; a letter from Kieran Mulloy of St Vincent de Paul Society received by the offender’s representatives on 15 August 2024; and a further email from Kieran Mulloy to the offender’s representatives dated 18 September 2024; a character reference from Amie Fazekas dated 9 October 2024; two poems written by the offender which were included in the publication “Dreaming Inside: Voices from Junee Correctional Centre”; his criminal history; and a Sentencing Assessment Report under the hand of Matthew Austin, Senior Community Corrections Officer at Wagga Wagga.
The offender was born in March 1964 and is now 61 years of age. He is an Aboriginal man and a victim of the Stolen Generation, having been taken from his family at the age of 2 or 3. He was then placed into an institution, where he was sexually abused by a doctor, until the age of 5. He was then placed with a non-indigenous foster family, where he appeared to have a happy childhood but he struggled with frequent nightmares which were related to memories of having been taken from his birth family by police. The offender began drinking alcohol from the age of 10 and he attacked his foster father at the age of 11. He was intermittently committed to various boys’ homes until the age of 16. In each of those homes he said he was further sexually abused. His account to Dr Shannon Paisley details those occurrences in greater detail. It suffices to say that in his account, they were violent sexual assaults.
Between periods spent in the boys’ homes the offender was able to reconnect with his birth family and continued living with his foster family. His substance abuse and behavioural issues were exacerbated by the death of his foster brother when the offender was 14. As he grew into adulthood the offender continued abusing alcohol and had a number of significant relationships characterised by alcohol abuse and domestic violence. He stopped drinking when he was approximately 37 years old but began using methylamphetamine.
He worked intermittently in construction and as a player contracted for various football clubs. Prior to the offending for which he appears for sentence, he appeared to have entered a period of relative stability, holding down stable employment and residing in his own flat.
The psychologist ultimately expressed the opinion that there was a causal relationship between the offender’s background of disadvantage and his offending behaviour. She further opined that at the time of the offending, the offender was suffering from Post-Traumatic Stress Disorder, a Major Depressive Disorder, and a Substance Misuse Disorder which she causally connected with his offending.
In his letter, Kieran Mulloy, case worker at the St Vincent de Paul Society, notes that he was the case worker assigned to the offender from December 2023 to February 2024 while the offender was living in the Edel Quinn Homelessness Shelter. He described that during that time the offender demonstrated a strong commitment to personal growth, acting as a role model to others, particularly with young Indigenous men, during his time there. Mr Mulloy said that the offender had a positive influence, particularly on the young Indigenous men during his stay, and that the positive influence “was significant and cannot be overstated.” He further said “In my professional career, I can scarcely recall an individual who has exhibited unwavering dedication to improving not only his own life but also the lives of others as Owen has.**”
In her reference letter Amie Fazekas described that the offender had coached an Indigenous women’s rugby league team in the Koori Knockout Competition for the last 6 or 7 years as at the date of the reference. She describes him spending countless hours planning and running training sessions on a voluntary and unpaid basis. She noted that at the time of his current offending, the offender had been gainfully employed, was renting his own home, and was actively contributing to his community.
In the two items of published poetry the offender expressed a close connection to the land and the river Biggee, which may be referring to the Murrumbidgee River. In “A Mother*’*s Love” the offender described memories of his caring birth mother, and of losing her when he was 2 years of age.
In the Sentencing Assessment Report the offender recounted much of his subjective circumstances as I have already outlined. In reviewing his extensive criminal history the Community Corrections Officer noted that the offender’s primarily aggression-related offending had increased in frequency and intensity between 2018 and 2022, with a desistence from offending from early 2022 to his re-arrest in mid-2024. I interpolate that I am not certain that I share that description of the chronology when one has recourse to the actual charging of various matters.
In discussing his offending with the report writer the offender denied responsibility and maintained that he was acting in self-defence, that the victim fell back onto a soft lounge, and that his ultimate brain injury must have been a result of later assaults. He denied that his drug use prior to the incident was a contributor to his aggression. He nevertheless conceded that he should not have punched the victim, he should have simply asked him to leave, and that his offending had put tremendous stress on himself and his relationship with his own children. He expressed a willingness to engage in counselling and treatment. He was ultimately assessed as a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).

The offender has an extensive criminal history. He first appeared in the Children’s Court in April 1980, aged 16, for stealing 20 gallons of petrol and he was committed to a children’s institution. Whilst still a juvenile, he was charged with driving with the prescribed concentration of alcohol.
The offender’s first offence as an adult occurred in May 1983 when he was aged 19, being an offence of assault. With respect to that first offence of assault and a later offence of assault and causing malicious injury, he ultimately was dealt with by way of bonds to be of good behaviour.
Between 1985 and 1989 the offender was charged with a number of offences relating to assaults, offensive behaviour, and resisting arrest. He received a variety of fines and bonds to be of good behaviour.
In late 1989 he was charged with assault occasioning actual bodily harm and was sentenced to his first term of imprisonment in March 1990. He served a fixed term of 6 months. Following his release in September 1990 he was charged with a number of counts of assaulting police and resisting arrest. In February 1991 he received the benefit of a recognisance to be of good behaviour for a period of 2 years.
In 1992 the offender was convicted of malicious wounding and assault occasioning and he was sentenced to 16 months with a 12-month non-parole period. Following his release in January 1993 he completed the 4-month period on parole before again being charged with offensive conduct and malicious damage in August 1993 in respect of which he was fined.
He was next imprisoned in January 1997 with respect to a number of offences of assault and assault occasioning actual bodily harm. He spent a further 6 months in custody. During the following 3 years approximately, he was charged with various summary offences including offensive behaviour and destroying or damaging property. He spent approximately 2 months in custody before his next more substantial period of incarceration in October 2000. During 2000 he had been charged with a variety of offences including common assault and resisting arrest. He was ultimately sentenced to a period of 6 months imprisonment. Following his release he was charged with destroying or damaging property and failing to comply with a direction in respect of which he was variously fined and given the benefit of a suspended sentence which was available at that time.
In 2004 he again had an interaction with police resulting in a charge of assault and possession of an offensive implement in public. He again received a suspended sentence. He remained out of custody for a period of about 4 years. During that time he was fined and disqualified for driving with a high range PCA. Further offences of common assault in 2007 and a further mid-range PCA resulted in fines. In January 2008 he was sentenced to 7 days imprisonment with respect to destroying or damaging property. In December 2008 he received a further bond to be of good behaviour for another offence of common assault.
Between 2009 and 2016 the offender was charged and convicted of a variety of offences including stalk and intimidate, using offensive language, and assault occasioning actual bodily harm. With respect to some offences he spent approximately 2 months in custody before some charges were dismissed, while with respect to other offences he received suspended sentences.
In 2016 the offender was charged with assault occasioning actual bodily harm in a domestic violence context, and sentenced to a term of imprisonment of 12 months with a non-parole period of 4 months. He ultimately served approximately 6 months before being released in May 2017.
In early 2018 he was charged with driving with an illicit substance in his blood and was again disqualified from driving. In July 2018 there were further offences of destroying or damaging property which resulted in a further bond to be of good behaviour. A variety of additional offending during the following 2 years resulted in fines, further disqualifications from driving, and a Community Correction Order.
Stalk and intimidate offences ultimately resulted in the Community Correction Orders being called up and the offender being sentenced to a term of imprisonment of 18 months to be served by way of an Intensive Correction Order. It would appear that he successfully completed the ICO before being charged with contravention of an Apprehended Violence Order and further offences of stalk and intimidate, and common assault. In 2021 he was sentenced to 7 months with a non-parole period of 4 months. In 2022 there were further charges of assault and contravention on an ADVO. He initially received a 3-month Community Correction Order. Subsequent offending led to him being called up for breach of the CCO. He was ultimately sentenced to a term of imprisonment of 16 months with a non-parole period of 12 months. I note in passing that that was the most substantial sentence he had received, notwithstanding the extent of his criminal history.
The offending giving rise to the present proceedings had occurred in February 2022, however the offender was not charged with respect to the assault upon Ellis until 22 March 2023 during his term of imprisonment for the later assault and contravention of an AVO which had occurred in September 2022.
He remained in custody until released to parole ultimately on 27 September 2023. On that date he was also granted bail with respect to the present charge in respect of which, as I have indicated, he had been charged on 22 March 2023. Following his release he thereafter remained on bail which I continued following the Guilty verdict in this matter on 12 August 2024.
It should be noted that his eligibility for release to parole for the matter in respect of which he was already serving a sentence was 22 September 2023. He was not released to parole at that time because bail had been refused on the present matter. Following the grant of bail for this matter on 27 September 2023, having served a further 6 days exclusively with respect to the present offending, he was then released to bail.
Whilst on that bail he was subsequently arrested and apparently charged with an offence of wounding with intent to cause grievous bodily harm on 23 August 2024, less than 2 weeks after I had continued his bail. He has been in custody in relation to that matter since his arrest on 23 August 2024. It would appear that bail was revoked on the present matter following his arrest for the wounding charge and the Crown sentence summary acknowledges that he has remained in custody since that time with respect to both matters.
The offender’s custodial history reflects a number of offences whilst in custody including assaults and fighting.
The Crown tender bundle included the police facts with respect to numerous of the offender’s prior assault charges and domestic violence offences. It is to be noted that they have variously included offences against women with whom he was in de facto relationships; throwing rocks at police; brandishing a knife; and physically punching female victims. In 2016 he had been charged with assaulting his own son by punching him in the face; and in 2021 and 2022 there were various breaches of ADVOs and assaults committed against Tina Brown, also known as Tina Williams, who was his de facto at the time intermittently and who was present on the occasion of the assault of Mr Ellis.
The Court received that material over the objection of Mr Sinclair on behalf of the offender. They provide context to his repeated assaults.

The Crown submitted and the defence conceded that no sentence other than imprisonment was appropriate for the offences.
In relation to objective seriousness, the Crown submitted that the Court must consider the seriousness of the injuries sustained by the victim, as well as the nature of the attack and the surrounding circumstances. In that regard the Crown noted that the offender delivered a single punch with sufficient force to knock the victim to the ground, that the punch was unprovoked other than by suspicion, and that despite the victim’s vomiting and dizziness, the offender took no real steps to assist him after the offence beyond helping him out of the apartment and down the steps. In relation to the injury, the Crown noted that although the victim recovered well and did not demonstrate any cognitive deficits since the injury, that the injury was still extremely serious as a form of traumatic brain injury requiring a mini-craniotomy. The Crown ultimately submitted that the offence fell within the mid-range of objective seriousness.
The Crown’s written submissions briefly summarise what I have already indicated is the offender’s long criminal history with several instances of violent offending. The Crown submitted that the present offending represents an escalation in violence. I should interpolate that while it may indicate an escalation in the resultant injuries, by reference to some of the earlier offending, I am not sure that I think the single punch does indicate an escalation of violence per se. The Crown submitted that the offender’s history ought to be regarded as an aggravating factor pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and in accordance with the principles in Meis v R [2022] NSWCCA 118.
In relation to the offender’s subjective circumstances, the Crown submitted that the offender’s background ought not be given undue weight in the sentencing exercise, in part due to the role of the offender’s mental health in his offending, but also with a view to the need for the sentence to give effect to specific deterrence and community protection. The Crown further submits that although a causal link between mental health and offending may lead to a reduction in moral culpability and the weight of general deterrence, in the present case the offender’s history of violent offences reflects that he continues to pose a danger to the community, ultimately heightening the importance of specific deterrence and community protection in this case. The Crown also submitted that there was insufficient evidence in support of the offender’s alleged childhood sexual abuse, or that it played any material role in his offending.
Noting the offender’s criminal history, the Crown lastly submitted that the Court could not reasonably make a finding that the offender had good prospects of rehabilitation.

I acknowledge that comparative cases and Judicial Commission statistics, regularly described as a blunt instrument, have limited utility in determining a sentence given that individual cases turn on their specific facts and vary greatly in their subjective and objective circumstances. However, it is appropriate to observe that reference to comparative cases in an overall way can provide some measure of the type of sentences passed in similar matters and can act as a touchstone for comparison with a contemplated sentence (see R v Smith [2016] NSWCCA 75 at [73]).
In Stobinski v R [2025] NSWCCA 97 the offender appealed against the sentence for two offences of recklessly inflicting grievous bodily harm and common assault. He had been on an elevated footpath drinking, had confronted some Chinese victims, had verbally abused them, and had openly pushed one of the victims down a flight of stairs. The victim landed heavily on the pavement, his hip was dislocated and he suffered some other injuries.
The offender had a record of violent offending. The offender had strong subjective circumstances. He did however have strong subjective circumstances which I do not propose to summarise.
He was ultimately sentenced to an aggregate sentence of 3 years and 4 months with a non-parole period of 2 years, that sentence having taken into account a 25% discount on the indicatives. There was an appeal against severity on the basis that the sentencing judge at first instance had not adequately engaged with principles relating to the impact of the mental health injuries on the offender’s moral culpability or with respect to the weight afforded to deterrence in accordance with Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. The Court of Criminal Appeal ultimately agreed with those submissions and upheld the appeal. The offender was resentenced to an effective sentence of 2 years and 6 months, with a non-parole period of 1 year and 6 months
In Kemp v R [2012] NSWCCA 281 the offender appealed against a sentence for two substantive offences of recklessly causing grievous bodily harm in company, and a charge of affray. The offender had been part of a group at Gosford Railway Station when a fight broke out between that group and another group. In due course the offender had punched a victim with a closed fist to the face, who, following that single punch, fell backwards and struck the back of his head on the concrete platform. He was knocked unconscious and taken to hospital where he had a fractured skull, bleeding on the brain and loss of hearing in his right ear. There were long term injuries including right ear deafness, problems with balance, and with deterioration and flashbacks.
The offender was only 18 at the time of the offending. The offender received the benefit of a 25% discount following pleas of guilty and was ultimately sentenced to 4 years and 6 months with a non-parole period of 2 years and 6 months for the grievous bodily harm offence, and 12 months concurrent for the affray.
An appeal against the severity of his sentence, which argued parity with one of the co-offenders, was in due course dismissed.
In Abdallah v R [2025] NSWCCA 98 the offender appealed against a sentence for one offence of recklessly causing grievous bodily harm. The victim was acting as the linesman and the offender was a spectator of a local football game. Abuse and assault ensued, the fine detail of which is not relevant to be recounted. Ultimately the victim was forcibly hit to the head by the offender, he was punched multiple times and kicked once in the head whilst on the ground. A significant injury, consistent with the description of grievous bodily harm was suffered, the victim had two acute displaced fractures to his jaw. He required surgery to insert three separate plates. He lost four teeth.
A 25% discount was applicable there having been a plea of guilty. The offender was ultimately sentenced to 2 years and 3 months with a non-parole period of 1 year and 2 months.
The grounds of appeal were that the sentencing judge had erred in not taking into account what was said to be provocation, however the appeal was dismissed.
In Ewan v R [2019] NSWCCA 17 there was a sentence, again for one offence of recklessly causing grievous bodily harm. There had been an argument between the victim and the offender’s father at his father’s business. The offender later crossed paths with and physically assaulted the victim. The injuries included a 3cm laceration to the forehead, a subdural haematoma, and a non-displaced fracture of the frontal bone. The injuries were able to be managed non operatively and the victim was expected to make a full recovery.
The offender had a criminal history, including a previous instance of violence, which did not completely disentitle him to leniency. He had some illegal recreational drug use. He received a 25% discount on sentence and was sentenced to 2 years and 6 months with a non-parole period of 1 year and 3 months. An appeal against manifest excess was dismissed.
In Dosen v R [2010] NSWCCA 283 there was an appeal in relation to one offence of recklessly inflicting grievous bodily harm. The victim had been working nightshift at a hotel and his daughter was the bar attendant on duty. A disagreement occurred between the offender and his partner in the bar of the hotel, and the bar attendant, being the victim’s daughter. In due course the offender and his partner were effectively ejected from the hotel. In the course of leaving the partner threw a jug of water onto the victim, tripped as she did so, and fell, suffering some injuries. The offender threw a schooner glass at the victim, which struck him and broke, causing significant injuries including lacerations and the puncturing of a main arterial blood vessel.
In due course, after a 25% discount, his Honour Judge Walmsley SC in the District Court imposed a sentence of 3 years with a non-parole period of 18 months. An appeal against severity was dismissed.
With respect to offences involving what might be described as either “one-punch” or “king hit” offences, the Court also sought assistance from a perusal of cases. Regrettably, many of the victims of such “one-punches” died as a consequence of the assault, notwithstanding that it was constituted by a single punch, and the charges which thereafter proceeded were in most cases one of manslaughter.
R v Hopley [2007] NSWDC 46 related to a series of altercations between two groups at a hotel in Newtown. The details of the interactions between those two groups is not necessary to be set out, but it suffices to observe that there was a continuing affray inside and outside the Marlborough Hotel in Newtown. The offender punched the victim twice as he endeavoured to leave the scene. The first punch caused the victim to take a few steps backwards and to adopt a fighting stance. The offender then approached and punched him with a single heavy blow with his right fist causing the victim to fall to the ground, hitting his head heavily on the roadway. The victim suffered a significant injury to his brain and died two days later without regaining consciousness.
A claim by the offender that he was acting in self defence was rejected by the jury at the offender’s trial and he stood to be sentenced in the District Court for manslaughter. The offender was 37 years of age and was found to have good prospects of rehabilitation. Judge Berman SC found that he was unlikely to re-offend. The sentencing judge, by his own research, found five cases in which a single blow was the cause of death: see at [33]. Judge Berman SC sentenced the offender to a term of 5 years imprisonment with a non-parole period of 3 years.
The offender appealed against the severity of sentence in Hopley v R [2008] NSWCCA 105. The Court of Criminal Appeal, per Johnson J, Beazley JA and McCallum J agreeing, found no error in the fact finding or determination as to an appropriate sentence. The appeal was dismissed.
In Carroll (R v Carroll; Carroll v R (2010) 267 ALR 57; [2010] NSWCCA 55) the offender was convicted of manslaughter following a head-butting which caused the victim to fall and hit his head on the pavement. He died some days later of the injury which had been caused. In the District Court Flannery DCJ passed a sentence of 3 years with a non-parole period of 18 months. The sentence was ordered to be served by way of periodic detention. An appeal against inadequacy was upheld in the Court of Criminal Appeal (McClellan CJ at CL and Hislop J; Simpson J dissenting): R v Carroll [2008] NSWCCA 218; 188 A Crim R 253. The sentence imposed in the District Court was quashed and, in lieu thereof, the Court sentenced Carroll to the same term, that is 3 years with an 18-month non-parole period, but directed that it be served by way of full-time imprisonment.
There was in due course an appeal by Carrol to the High Court which was successful on grounds that are not relevant for present purposes: Carroll v R (2009) 83 ALJR 579; [2009] HCA 13.
By the time the matter was referred back to the Court of Criminal Appeal, the amendments pursuant to the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 had been passed in which the consideration of double jeopardy, which had initially been a relevant consideration in the Court of Criminal Appeal, had been abolished. There was then a constitutional argument with respect to the application of that amendment to those proceedings and eventually, after considerable delays brought about in part because of the legislative amendments and the need to reconstitute a bench of five to deal with the constitutional issues, taking into account the time already served, his substantial rehabilitation, and the fact that the appellant was about to qualify and finish his apprenticeship, the Court of Criminal Appeal ultimately imposed an additional sentence of 18 months which was wholly suspended in the unusual circumstances of that matter.
In Perry v R [2021] NSWCCA 244 the offender, who was from an indigenous background, appealed against a sentence for one offence of reckless wounding. The circumstances were that the offender and the victim had been to a club together before going to the offender’s girlfriend’s residence. The offender went inside first before inviting the victim inside. The victim was talking to the girlfriend in the kitchen while the offender went outside, presumably concerned with the interaction between his associate and his girlfriend, and came back into the kitchen armed with a broken chair leg with screws protruding from it. He struck the victim to the head which caused immediate bleeding. He rendered some assistance and apologised to the victim before the victim left. After the victim was located by police, he was found to be unsteady on his feet and having difficulty communicating. He had lacerations to his head and an extradural haematoma which was compressing the left side of his brain. An emergency craniotomy needed to be carried out. The offender, who was under the influence of a vast amount of cannabis, heroin, and methylamphetamine at the time, had been motivated by a misapprehension that the victim was speaking to his girlfriend in an inappropriate way. The sentencing judge at first instance, his Honour Judge Turnbull SC, held that the offending was spontaneous, drug-addled, and a violent response to a perceived slight.
The subjective circumstances indicated that the offender was Aboriginal with a background of severe deprivation. His mother’s partners had been physically abusive and his own father was a drug addict. He had been placed into care with other relatives between the ages of 8 to 14. He had gone into juvenile detention where he had been the victim of childhood sexual abuse. The offender had a significant criminal history of violence and was described as somewhat remorseful.
Turnbull SC DCJ sentenced the offender to a term of imprisonment of 4 years with a non-parole period of 2 years. There had been a plea of Guilty and the sentence was following a 25% discount. There was an appeal against the severity of sentence primarily on the basis that his Honour had assessed the objective seriousness as at the “upper low-range” and the Court of Criminal Appeal took the view with a notional commencement dated leading to 4 years after a 25% discount was too high. Their Honours clearly started with a notional sentence of 4 years with a non-parole period of 2 years, and after allowing for a 25% discount, they imposed a term of imprisonment of 3 years with a non-parole period of 18 months.

There has been a not insubstantial delay in the finalisation of this matter. That delay should be publicly explained.
Following the verdict on 12 August 2024 in Wagga Wagga the matter was adjourned for a sentence hearing which would have taken place in Sydney in October 2024. That date was later vacated by consent and the matter was adjourned to 29 November 2024 to allow the Defence to obtain a psychological report.
At the sentence hearing on 29 November 2024 both parties agreed that it would be advantageous if the present matter and the fresh offending, being the charge of malicious wounding, were joined and dealt with together.
The present matter was therefore adjourned to February 2025 for mention so that the progress of a potential plea in the malicious wounding matter could be determined. It was then determined to fix a date for sentence for both matters. The matter was again adjourned to April 2025 as the malicious wounding was still at the case conferencing stage and had not yet resolved.
The present matter was then further adjourned until May 2025.
In May 2025 the Court was advised by both the Crown and Mr Sinclair that the malicious wounding matter was expected to resolve and accordingly both parties sought a sentence date in September 2025 and it was expected that both matters would proceed together.
The present matter was then listed for a continuation of the sentence proceedings before me on 5 September 2025, notwithstanding that I was sitting on circuit in Queanbeyan.
On 5 September 2025 the Court was advised that the malicious wounding had not resolved completely as had been anticipated, and had instead been fixed for a Disputed Facts Hearing in Wagga Wagga and was listed for hearing in the sittings in February 2026.
Although it remained desirable that both matters be dealt with together, particularly given the complications with the issues of pre-sentence custody and a consideration of the proper application of the principle of totality, it became clear that whichever judge hears the Disputed Facts matter fixed for Wagga Wagga, which is unlikely to be myself, will be required to sentence for that matter. At present it is not clear which judge will be sitting in Wagga Wagga in February 2026. As such and given the already extensive delays in the present matter, both parties agreed that it was appropriate that this matter should proceed to sentence without being joined together with the malicious wounding.
With respect to the objective seriousness of the offending, in my view it falls just below the mid-range. I reach that view because the evidence revealed no ongoing sequelae from the traumatic injury which required comparatively straightforward surgical intervention. That observation is not intended to diminish the seriousness of the subdural injuries or haematoma, but the outcome stands in stark contrast to many other injuries described as grievous bodily harm which might properly be described as more serious.
The offender has expressed remorse only to a very limited degree. His expressions in that regard might more appropriately be described as regret rather than actual remorse and he has continued to assert self-defence both in his evidence in his account provided at trial and to the Sentencing Assessment Report writer. His account of protection of Ms Brown and of the victim’s head landing on a soft couch continue his protestations of innocence at the trial. There is no real demonstration of remorse or insight.
The interplay between remorse and rehabilitation, and the likelihood of re-offending are overlapping considerations that influence considerations of each, notwithstanding that they are separately itemised as relevant factors to be considered on sentence. His past criminal history and the circumstances of numerous of the previous assaults, whilst they do not increase the objective seriousness of his present offending, do indicate that retribution, deterrence, and the protection of society may warrant a more severe sentence than might otherwise be appropriate: see Howie J in Shankley v R [2003] NSWCCA 253 at [31]. It cannot be gainsaid that the present offending was not an uncharacteristic aberration. It clearly manifests a continuing attitude of disobedience of the prohibitions and restrictions of the law.
In the Crown’s submission, this previous offending illuminates the offender’s moral culpability and supports the imposition of “condign punishment” both with respect to specific and general deterrence: see Meis v R [2022] NSWCCA 118.
As is so often the case, other considerations pull in a different direction. The principles described as deriving from R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 387 are clearly enlivened given the circumstances of this offender’s background and past life. Regrettably, he reflects the type of outcome which is regularly encountered with the victims of the Stolen Generation, as described. His exposure to sexual offending in childhood institutions is a frequent and common factor with respect to many such individuals. The psychological material provided is strongly supportive not only of detailed consideration of the various Bugmy principles with extensive quotations from the Bugmy Bar Book but also invokes a consideration of the principles derived from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 with respect to the ongoing commission of Mr Nixon’s offending. These factors strongly point towards a reduction in moral culpability.
It is on that basis that I describe the different considerations as pulling in diametrically opposite directions. The principle of totality requires consideration in the present proceedings in circumstances where periods of his incarceration relate to different offences during overlapping periods. It was precisely for that reason it had been thought desirable to bring forward the sentencing with respect to the malicious wounding. For the reasons already outlined, that has not proved possible without further substantial delay to the present matter.
As I have earlier indicated, the offender’s bail was initially refused between 22 March 2023 when he was charged and from 27 September 2023 when he was both granted bail and released to parole with respect to the sentence he was already serving. Of the period of 185 days before he became eligible for parole, Mr Sinclair has submitted in accordance with the relevant judicial discretion that a period of 50% of that time should be taken into account with respect to the present matter. Slightly rounded, that is a period of 92 days. That may be a generous allowance which I do in the circumstances propose to agree with.
The period of 6 days after his eligibility for parole and before bail was granted on the present matter brings that total to 99 days of pre-sentence custody. His subsequent refusal of bail for both the present matter and the malicious wounding is a total of 390 days. It was submitted that that entire period should be attributed to the present offending and the question of apportionment with the malicious wounding will need to be considered in the application of the principle of totality by the sentencing judge in the malicious wounding matter.
The total period to be attributed pursuant to that approach is therefore 489 days which would take the commencement date for the sentence that I will impose to 15 May 2024. I accept those submissions and calculations by Mr Sinclair.
In circumstances where there is no statutory discount with respect to a plea of Guilty and the matter proceeded to a contested trial, the appropriate sentence is a period of 4 years.
I have given careful consideration to the question of special circumstances which would justify a variation in the statutory ratio for a non-parole period. I am of the view that the positive steps which the offender had been taking, including his having employment and stable residential accommodation prior to the commission of this offence, combined with his advancing age, will necessitate an extended period of supervision. I reach that conclusion, putting to one side the potential increase in any term imposed by me as a consequence of the remaining malicious wounding charge for which he will be sentenced at some time after the Disputed Facts Hearing. There will be a non-parole period of 2 years. The head sentence and the non-parole period will be backdated to commence on 15 May 2024. He will accordingly be eligible for release to parole with respect to this matter on 14 May 2026. The balance of term will expire on 14 May 2028.