AA v McDevitt
[2017] ACTSC 342
•27 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | AA v McDevitt |
Citation: | [2017] ACTSC 342 |
Hearing Date: | 27 October 2017 |
DecisionDate: | 27 October 2017 |
Before: | Murrell CJ |
Decision: | Appeal against conviction allowed. Appellant convicted of alternative count of recklessly inflicting actual bodily harm and sentenced to 9 months’ imprisonment. Appeal against individual sentences dismissed. Sentences restructured. Effective sentence of 32 months’ imprisonment, suspended after 16 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – appeal against conviction – offences against the person – meaning of grievous bodily harm – where injuries involved potential harm – appeals against total sentence and individual sentences – whether manifestly excessive – offences objectively serious |
Legislation Cited: | Crimes Act 1900 (ACT) ss 20, 23 Crimes (Sentencing) Act 2005 (ACT) ss 133D, 133E Magistrates Court Act 1930 (ACT) pt 3.10, ss 209, 218 |
Cases Cited: | Bugmy vthe Queen [2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Wick v The Queen [2017] NSWCCA 224 |
Parties: | AA (Appellant) Jason McDevitt (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Ms R Christensen (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 47 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Childrens Court Before: Magistrate Fryar Date of Decision: 19 May 2017 Case Title: McDevitt v AA Court File Numbers: 810148, 810155, 810199 |
MURRELL CJ:
The appeal
On 28 March 2017, the Childrens Court found the appellant guilty of 13 offences committed in June 2016 against his then girlfriend. He seeks leave to appeal against the finding that he was guilty of the offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act) on the basis that the evidence did not support a finding of “grievous bodily harm”.
On 19 May 2017, the appellant was sentenced to an effective period of 35 months’ imprisonment from 30 June 2016 to be suspended after he had served 22 months in detention (29 April 2018) on entering into a conditional good behaviour order for two years. The appellant appealed against the sentences, claiming that four individual sentences (including that relating to the offence of recklessly inflicting grievous bodily harm, CH2016/601) were manifestly excessive and that the total sentence was manifestly excessive.
An appeal against findings in the Childrens Court is governed by Part 3.10 of the Magistrates Court Act 1930 (ACT) (MCA). Section 218 of the MCA provides that, on an appeal, a wide range of orders is available to the Supreme Court.
Application for leave to appeal
Section 209 of the MCA provides that an appeal must be instituted within 28 days of the conviction, or within such further time as the Supreme Court allows.
The application for leave to appeal was made on 18 October 2017, six months out of time.
On an application for leave, it is usually relevant to consider whether there is an acceptable explanation for the delay, whether the respondent (or another affected individual) would be prejudiced if the appeal proceeded, whether the appeal lacks merit and the related question of whether there is a reasonable probability that refusal of leave might cause a miscarriage of justice: Vojneski v The Queen [2015] ACTCA 44 at [20].
In this case, the appellant did not advance any explanation for the delay. However, the grant of leave will not result in prejudice. Further, the failure to grant leave may cause a miscarriage of justice in the sense that the appellant would stand convicted and sentenced for a very serious matter when he should have been convicted of a significantly less serious alternative count.
The respondent did not assert that it was prejudiced and did not oppose the granting of leave.
The appellant is granted leave to appeal against the conviction for recklessly causing grievous bodily harm.
Childrens Court proceedings
In the Childrens Court, the appellant denied a raft of charges alleging a sustained and vicious attack on his then 16 year old girlfriend over a period of five days in June 2016, when he was 17 years old.
The Childrens Court accepted the complainant’s evidence. The Court found it to be “forthright, measured, and credible” and supported by both the medical evidence of Dr Brogan (who examined the complainant shortly after the incident) and a number of lay witnesses (who gave evidence of observing the complainant shortly after the alleged incident and evidence of complaint).
The Childrens Court rejected the appellant’s evidence, noting that some of the explanations provided by the appellant were “quite extraordinary.” For example, when attempting to explain photographs of injuries to the complainant, the appellant said that, when he had sexual intercourse with her he always choked her and pulled her hair because she liked it. This explanation had not been put to the complainant.
Understandably, the appellant does not seek to challenge the Childrens Courts findings on credit. Those findings largely determine the question of the appellant’s guilt.
Facts and sentences
The brief facts and the sentences imposed for each offence are outlined below. The maximum penalties that are noted are those applicable when an offender is charged on indictment. As the Childrens Court observed, the maximum penalty that it could impose for an offence was two years’ imprisonment.
Charge CH2016/601 – recklessly inflict grievous bodily harm
Following a verbal argument between the appellant and the complainant, the appellant began to assault the complainant. Early in the five-day period over which the assault occurred, the appellant forcefully slapped the complainant’s face with open hands at least “a handful of times”. This resulted in extensive abrasions and bruising to most areas of her face, including her eyes, forehead, both sides of her face and her jaw area.
The appellant was sentenced to 18 months’ imprisonment (maximum penalty 13 years’ imprisonment).
Charge CH 2016/596 – assault occasioning actual bodily harm
When the complainant began to feel sick and went towards the kitchen sink to vomit, the appellant grabbed her hair and pulled her back, forcing her on to a kitchen bench, where the appellant held her for about one minute. As a result, she experienced pain and soft tissue injuries to her back, tenderness to her skull and hair loss.
The appellant was sentenced to 6 months’ imprisonment (maximum penalty five years’ imprisonment).
Charge CH2016/418 – act endangering life
While the complainant was standing in the kitchen, the appellant seized her neck with both hands and choked her until she lost consciousness. The complainant suffered soft tissue injuries to her neck.
The appellant was sentenced to 15 months’ imprisonment (maximum penalty 10 years’ imprisonment).
Charge CH2016/421 – threat to kill
On a separate occasion in the kitchen, the complainant was required to get to her knees, apologise and beg for her life. The appellant then pulled her from the ground, causing pain to her arm.
The appellant was sentenced to 6 months’ imprisonment, entirely concurrent with CH2016/418 (maximum penalty 10 years’ imprisonment).
Charge CH2016/419 – act endangering life
When the appellant and the complainant were in the lounge room, the appellant held the complainant against a wall and choked her with both hands until she lost consciousness and fell to the floor.
The appellant was sentenced to 15 months’ imprisonment (maximum penalty 10 years’ imprisonment).
Charge CH2016/598 – assault occasioning actual bodily harm
After the complainant fell to the floor, the appellant repeatedly kicked her right rib area until the pain became unbearable, then the appellant kicked her in the left rib area.
The appellant was sentenced to 12 months’ imprisonment (maximum penalty five years’ imprisonment).
Charge CH2016/599 – common assault
On another occasion in the lounge room, the appellant repeatedly punched the complainant’s stomach, causing her to vomit.
The appellant was sentenced to 4 months’ imprisonment, entirely concurrent with CH2016/598 (maximum penalty two years’ imprisonment).
Charge CH2016/420 – act endangering life
When the appellant and the complainant were in the bedroom doorway, the appellant sat on the complainant’s back as she was lying on her stomach with her arms pinned beneath her. The appellant used both hands to hold her neck and choke her until she began to lose consciousness. At one point, when the complainant screamed for help, the appellant choked her again and put his hand over her mouth and nose.
The appellant was sentenced to 14 months’ imprisonment (maximum penalty 10 years’ imprisonment).
Charge CH2016/602 – common assault
On an occasion when the complainant was vomiting into the toilet, the appellant became angry, grabbed her head and pushed it into the toilet while making derisory remarks.
The appellant was sentenced to 4 months’ imprisonment, entirely concurrent with CH2016/598 (maximum penalty two years’ imprisonment).
Charge CH2016/597 – assault occasioning actual bodily harm
After the complainant had vomited into the toilet, she washed her hands at the sink. The appellant grabbed the back of her head and pushed her head and face into the mirror a couple of times. The complainant pleaded with him to stop. She sustained bruising behind her ears.
The appellant was sentenced to 9 months’ imprisonment (maximum penalty five years’ imprisonment)
Charge CH2016/600 – common assault
When the complainant attempted to call police, the appellant removed the telephone from her. The appellant approached the complainant while holding a 30 cm kitchen knife. He gently pressed the knife to her neck for a short time.
The appellant was sentenced to 6 months’ imprisonment, entirely concurrent with CH2016/419 (maximum penalty two years’ imprisonment).
Charge CH2016/603 – assault occasioning actual bodily harm
Towards the end of the complainant’s five-day ordeal, the appellant used a plastic kitchen spatula to repeatedly strike the complainant’s right arm while accusing her of lying. The force of the blows caused the spatula to break. The appellant continued to slap and hit the complainant across the face until her brother knocked at the door.
The appellant was sentenced to 4 months’ imprisonment, entirely concurrent with CH2016/418 (maximum penalty five years’ imprisonment).
Charge CH2016/601 – recklessly inflicting grievous bodily harm
The appellant argued that the evidence was incapable of supporting a finding of “grievous bodily harm”.
The relevant expert evidence was not itself the subject of dispute.
At page 9 of her report, Dr Brogan stated:
Head injuries:
There is potential for trauma to the head to be extremely serious and life-threatening. The consequences of trauma to the head include, bleeding within the head, fracture of bones of the skull, as well of damage to the brain, all of these may cause permanent and irreversible damage. Serious injury may occur without visible signs of external injury. Long-term consequences of head injury include an increased risk of dementia and Parkinson’s disease.
(Emphasis added)
At page 11 of her report, Dr Brogan again noted the potential for such trauma to be extremely serious and life-threatening, with consequences including very serious internal injuries and, in the long-term, very serious neurological conditions.
Dr Brogan’s opinion was based on research that involved the meta-analysis of data that examined the relationship between traumatic brain injury and the development of serious neurological conditions. The research showed that there is a “statistically significant increase in risk of developing Parkinson’s Disease for people who report a history of concussion or head trauma, particularly those that report a loss of consciousness.” There was no evidence that the complainant had lost consciousness as a result of the conduct the subject of charge CH2016/601.
The Childrens Court found that the appellant’s conduct of repeatedly and forcefully slapping the complainant’s head:
32. …caused the really serious head injuries as detailed by Dr Brogan. That the complainant may not yet have suffered some of the extreme speculated consequences of such trauma to the head does not mean that the injury to the head was not really serious, especially in the light of the evidence of the risk of neuro-degenerative diseases in later life from such injuries.
Did the evidence establish grievous bodily harm?
The respondent submitted that it had been open to the Childrens Court to find that the increased risk of future neurodegenerative disease amounted to “grievous bodily harm”.
“Grievous bodily harm” is defined in the dictionary to the Crimes Act to include any permanent or serious disfiguring of the person and serious harm to the pregnancy of a pregnant woman. The definition is an inclusive one.
In the ACT, it has been accepted that “grievous bodily harm” means “really serious harm”, although the harm need not be permanent or life threatening: R v Shevlin [2013] ACTSC 88; R v Byrne 2013] ACTSC 246.
This approach is consistent with that taken in New South Wales, where a similar (although more extensive) inclusive definition applies. In Swan v The Queen [2016] NSWCCA 79, the majority (RA Hulme and Garling JJ, Wilson J dissenting) found that a transverse process fracture on the left side at the L3 vertebra which caused short-term pain but had no long-term consequence and required no medical intervention did not amount to “grievous bodily harm”.
After considering the authorities on grievous bodily harm, at [71], Garling J concluded:
[71] To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase “grievous bodily harm”:
(a) It is to be interpreted according to its natural and ordinary meaning;
(b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;
(c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;
(d) not every injury is capable of amounting to grievous bodily harm;
(e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.
(Emphasis in original)
The respondent relied upon the recent NSW decision of Wick v The Queen [2017] NSWCCA 224 (Wick), in which the Court was satisfied that the injuries in question were capable of amounting to grievous bodily harm. The injuries were five “full thickness” facial lacerations that required suturing in two layers and which healed leaving soft scarring, as well as damage to nerves that controlled the facial muscle and which was repaired by micro-surgery.
The injuries in Wick were more serious than those in the present case. Each type of injury required medical intervention and the facial lacerations resulted in scarring. In contrast to Wick, in this case, it seems to have been accepted that, if the risk of future neurological deterioration was disregarded, the facial injuries did not amount to grievous bodily harm.
In this case, the risk that serious neurological conditions would develop in the future was not quantified, beyond saying that, based on meta-analysis (rather than the complainant’s particular medical circumstances) the increased risk that the trauma to the complainant’s head would cause a serious neurological condition was “statistically significant”.
“Grievous bodily harm” is concerned with “actual harm”, not potential harm. In this case, there is an increased risk that the complainant will suffer harm in the future, but the extent of the increased risk is entirely speculative. It may be arguable that a particular complainant has suffered “grievous bodily harm” where the evidence establishes that there is a moderate to high prospect of that future harm materialising, but that issue does not arise in this case.
The appeal against conviction should be allowed.
From the outset of proceedings in the Childrens Court, the prosecution submitted that, in the event that the offence of recklessly inflicting grievous bodily harm was not made out, the appellant should be convicted of the statutory alternative of inflicting actual bodily harm, contrary to s 23 of the Crimes Act (maximum penalty 5 years’ imprisonment).
I am satisfied beyond reasonable doubt that the appellant assaulted the complainant and caused an injury that amounted to actual bodily harm. The appellant conceded that the injury amounted to actual bodily harm. I find the appellant guilty of the alternative offence of recklessly inflicting actual bodily harm.
Sentence for inflicting actual bodily harm
Objectively, the offence was a serious offence of its type. The appellant’s conduct was objectively very serious. It entailed the repeated, forceful striking of the complainant’s face, a vulnerable area. The offence was committed in a domestic violence context and was not an isolated incident. The complainant was a 16 year old girl. The injuries were of moderate seriousness given the range of injuries that constitutes “actual bodily harm”.
The appellant advanced strong subjective circumstances (see below).
The appellant had previously committed minor offences of a violent nature and was on a good behaviour order for common assault at the time that the offence was committed.
Special youth justice principles apply to the sentencing of children, and rehabilitation is the primary sentencing purpose. In my view, in this case the sentencing purpose of rehabilitation can best be addressed through the manner in which the total sentence is structured.
The objective seriousness of the offence means that the only appropriate penalty is a sentence of imprisonment.
Appeal against sentence
Where, as here, an appellant alleges a miscarriage of a sentencing discretion, the appellant must establish that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. That is, the appellant must establish that, having regard to the maximum available penalty (which applies to the worst class of cases and indicates the relative seriousness of an offence), the objective gravity of a particular offence and the subjective circumstances of the particular offender, the sentence is not within the available range of sentences.
For the reasons that follow, I am not satisfied that any sentence imposed by
the Childrens Court was manifestly excessive. Nor do I consider that the total sentence imposed by the Childrens Court was manifestly excessive. However, the latter matter does not call for determination; because I am imposing a new sentence for the offence of occasioning actual bodily harm, I need to consider the total sentencing picture for the purpose of ensuring that the total sentence reflects the total criminality.
Appellant’s submissions about individual sentences
First, the appellant submitted that the Childrens Court failed to give primacy to the sentencing purpose of promoting rehabilitation, as required by the provisions of the Crimes Sentencing Act (2005) (ACT) (Sentencing Act) that apply to children and in accordance with case law (see, e.g., R v CV [2013] ACTCA 22 at [42]). The appellant submitted that the Court gave undue weight to other s 7 sentencing purposes of punishment, general and specific deterrence and denunciation.
An examination of the Childrens Court's reasons for sentence does not bear
out this submission. The Court referred to rehabilitation progress and acknowledged that rehabilitation was “certainly a significant factor”, while noting other relevant sentencing purposes.
Second, the appellant submitted that the Childrens Court did not pay sufficient attention to the appellant’s specific subjective circumstances. The appellant submitted that the Childrens Court did not appear to attach any or any adequate significance to the appellant's youth and immaturity as required by the provisions of the Sentencing Act that applied to children (particularly Sentencing Act ss 133D, 133E).
The Childrens Court was well aware of the appellant's age and status as a young person and was extremely experienced in sentencing in accordance with the regime applying to children. There is nothing to suggest that the Court failed to apply that regime.
The appellant submitted the Court did not consider the negative impact of imprisonment (including detention in a juvenile institution) on him, particularly as the appellant had not previously served a custodial sentence.
The Childrens Court did note that imprisonment was a sentence of “last resort” and that it had to impose the shortest term possible because the appellant was a young person. The Court felt compelled to impose a significant sentence of imprisonment because of the objective seriousness of the offences.
Relying on Bugmy vthe Queen [2013] HCA 37; 249 CLR 571 at [43]–[44], the appellant submitted that the Childrens Court failed to pay sufficient regard to his disadvantaged background, which involved a dysfunctional childhood marred by paternal violence to family members and paternal criminality. The appellant had lived in residential care facilities since 14 years of age and had been introduced to illicit substances at an early age.
This submission was not made out. The relevant material was before the Childrens Court and was referred to by the Court.
The appellant submitted that, in its sentencing remarks, the Court did not refer to his mental health; after his arrest, he was diagnosed with dysthymia, cannabis use disorder and borderline traits, and he was prescribed anti-depression and anti-psychotic medication.
The Court had before it evidence of the appellant’s diagnoses and treatments for psychological conditions. This was a factor to be considered as part of the appellant's general subjective circumstances and meant that the appellant was not an appropriate vehicle for a message of general deterrence.
Although the Childrens Court referred in passing to the sentencing purpose of general deterrence, the remarks do not suggest that the Court considered the appellant
to be an appropriate vehicle for a strong message of general deterrence; although that could very well have been the position had the appellant been an adult.
The appellant submitted that the Childrens Court failed to place any weight
on the circumstance that he was drug-dependent.
The Court was aware of the appellant’s drug dependency and referred to his difficulties with drugs. The Court went on to comment “that there is no fact no evidence that that affected his moral culpability for the offences.” That comment could not be the subject of reasonable objection. There was no suggestion that the appellant's chronic cannabis abuse in some way diminished his moral culpability for committing a sustained and callous assault on the complainant.
As already stated, I am not satisfied that any sentence that was imposed by the Childrens Court was outside the available range. It is arguable that, having regard to the objective seriousness of the offences and the available maximum penalty, some of the sentences were lenient.
The appeals against individual sentences are dismissed.
Sentence and re-sentence
The sentences imposed by the Childrens Court are set aside and the appellant is sentenced and resentenced as follows:
(i)CH2016/601: recklessly inflicting actual bodily harm, sentenced to 9 months’ imprisonment from 30.06.16 – 31.03.17
(ii)CH2016/418: act endangering life, sentenced to 15 months’ imprisonment from 31.10.16 – 31.01.18
(iii)CH2016/419: act endangering life, sentenced to 15 months’ imprisonment from 31.01.17 – 30.04.18
(iv)CH2016/420: act endangering life, sentenced to 14 months’ imprisonment from 31.03.17 – 31.05.18
(v)CH2016/421: intentional threat to kill, sentenced to 6 months’ imprisonment from 31.10.16 – 30.04.17
(vi)CH2016/597: assault occasioning actual bodily harm, sentenced to 9 months’ imprisonment from 28.02.18 – 30.11.18
(vii)CH2016/596: assault occasioning actual bodily harm, sentenced to 6 months’ imprisonment from 28.02.18 – 31.08.18
(viii)CH2016/598: assault occasioning actual bodily harm, sentenced to 12 months’ imprisonment from 28.02.18 –27.02.19
(ix)CH2016/603: assault occasioning actual bodily harm, sentenced to 4 months’ imprisonment from 31.10.16 – 28.02.17
(x)CH2016/599: common assault, sentenced to 4 months’ from 28.02.18 – 30.06.18
(xi)CH2016/602: common assault, sentenced to 4 months’ imprisonment from 28.02.18 – 30.06.18
(xii)CH2016/600: common assault, sentenced to 6 months’ imprisonment from 31.01.17 – 31.07.17
(xiii)CH2016/446: act endangering life, sentenced to 9 months’ imprisonment from 30.11.17 – 31.08.18
The effective sentence is 32 months’ imprisonment.
Having regard to the sentencing purpose of rehabilitation and the fact that this is the appellant’s first time in detention, I consider that he should serve 16 months’ imprisonment (to 31.10.17) and thereafter the sentences should be suspended upon the appellant entering into a two year good behaviour order that is subject to the conditions stated by the Childrens Court, i.e. he is to submit to the supervision of the Director General, and is to comply with all reasonable directions of the Director General for a period of two years or such lesser period as deemed appropriate by the Director General, he is to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, he is to supply samples of breath, blood, hair, saliva or urine for alcohol or drug testing if required and he is to undertake medical treatment and supervision as directed.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 16 November 2017 |
**************
Amendments
1 February 2018 Replace “31.10.17 – 31.01.18” with “31.10.16 – 31.01.18” at [79] sub-para (ii)
Replace “31.01.17 – 31.08.17” with “31.01.17 – 31.07.17” at [79] sub-para (xii)
6
8
3