David John Welch v The Queen; Steven Paul Beattie v The Queen; Benjamin Thomas Sherd v The Queen

[2012] ACTCA 14

DAVID JOHN WELCH v THE QUEEN
STEVEN PAUL BEATTIE v THE QUEEN
BENJAMIN THOMAS SHERD v THE QUEEN
[2012] ACTCA 14 (9 February 2012)

CRIMINAL LAW – appeals against sentence – common facts – whether trial judge erred in failing to take into account offender’s expression of remorse – whether trial judge erred in failing to take into account offender’s rehabilitive prospects and family circumstances – whether sentences imposed by trial judge were excessive – whether a period of periodic detention was appropriate

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 20 - 2011
No. SCC 35 of 2010
No. SCC 250 of 2010

No. ACTCA 35 - 2011
No. SCC 19 of 2011

No. ACTCA 30 - 2011
No. SCC 18 of 2011

Judges:         Higgins CJ, North and Rares JJ
Court of Appeal of the Australian Capital Territory
Date:            9 February 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 – 2011
  )          No. SCC 35 of 2010
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 250 of 2010
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID JOHN WELCH

First Appellant

AND:THE QUEEN

Respondent

IN THE SUPREME COURT OF THE       )          No. ACTCA 35 - 2011
  )          No. SCC 19 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN PAUL BEATTIE

Second Appellant

AND:THE QUEEN

Respondent

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 - 2011
  )          No. SCC 18 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BENJAMIN THOMAS SHERD

Third Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, North and Rares JJ
Date:  9 February 2012 
Place:  Canberra

THE COURT ORDERS THAT:

David John Welch v The Queen

1. The sentence of six months of imprisonment imposed for the assault upon Mr Mudge and the sentence of one year and two months of imprisonment imposed for the assault upon Mr Syed be set aside.  In lieu thereof, respective sentences of four months and one year of imprisonment be imposed;

1. The period of accumulation and full-time imprisonment imposed for the remaining three offences be set aside.  In lieu thereof, those sentences be adjusted so as to provide for a period of full-time imprisonment expiring on 27 September 2012 and so that the offender serve periodic detention for a further nine months concluding on 27 June 2013;

1. A non-parole period concluding on 27 June 2013 be imposed.

Steven Paul Beattie v The Queen

1. The head sentence be varied such that Mr Beattie serve a period of full-time imprisonment for one year concluding on 21 June 2012 and a period of periodic detention for one year to conclude on 21 June 2013.

Benjamin Thomas Sherd v The Queen

1. The head sentence be varied such that Mr Sherd serve a period of full-time imprisonment for one year concluding on 21 June 2012 and a period of periodic detention for nine months to conclude on 21 March 2013;

1. A non-parole period concluding on 21 March 2013 be imposed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 - 2011
  )          No. SCC 35 of 2010
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 250 of 2010
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID JOHN WELCH

First Appellant

AND:THE QUEEN

Respondent

IN THE SUPREME COURT OF THE       )          No. ACTCA 35 - 2011
  )          No. SCC 19 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN PAUL BEATTIE

First Appellant

AND:THE QUEEN

Respondent

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 - 2011
  )          No. SCC 18 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BENJAMIN THOMAS SHERD

Third Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, North and Rares JJ
Date:  9 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. These three appeals against sentence were heard together and involve some common facts.

David John Welch v The Queen

1. The first appeal is by David Welch.  On 12 May 2011, the primary judge sentenced the offender on five counts to what amounted to a total sentence of four years imprisonment with a single non-parole period of two years and three months.   There were two separate occasions of offending, the first in 2007, the second in 2010.

1. The first two counts related to an incident in a nightclub on 9 June 2007.  The offender was 23 years old.  The offences were done in company.  The appellant pleaded guilty to one count of assault occasioning actual bodily harm for which he was sentenced to six months’ imprisonment, and a second count of intentional wounding for which he was sentenced to 14 months’ imprisonment.  His Honour accumulated the two sentences to a total head sentence of one year and five months.

1. The other three counts related to the appellant aiding three other persons including the other two appellants, Stephen Paul Beattie and Benjamin Thomas Sherd, to commit an assault on three victims occasioning each victim actual bodily harm.  Those offences occurred on 13 March 2010 when Mr Welch was nearly 26 years old.  The primary judge sentenced Mr Welch on a different factual basis to that used for the sentences of Mr Beattie and Mr Sherd.  This was because his Honour proceeded on the basis of differences in the agreed facts in the sentencing of the appellants to those in Mr Welch’s case.  In his case, the agreed facts were that Mr Welch had aided and abetted the others, whereas the agreed facts used for sentencing Mr Beattie and Mr Sherd proceeded on the basis that Mr Welch had been the ring leader of the offending.

1. The primary judge took account of the history of alcohol abuse and drug abuse by Mr Welch, particularly his cannabis use.  His Honour was also cognitive of the appellant’s medical history of epilepsy, depression, cannabis consumption and record of 18 prior offences.  These included an offence of recklessly inflicting actual bodily harm on a victim.  That latter offence was committed after the nightclub incident of June 2007 but the appellant was sentenced on it before his Honour imposed a sentence for the nightclub offending.

1. The nightclub incident of June 2007 involved Mr Welch and his co-offender, who was then under 18 years of age, resisting being removed from a nightclub by a security officer, Mr Syed.  Mr Welch, in company with the juvenile, assaulted a patron, Mr Mudge, who had gone to assist Mr Syed.  Mr Welch first caused an abrasion to Mr Mudge’s neck (constituting the offence of assault occasioning actual bodily harm).  Next, he intentionally inflicted an injury by hitting his hand, with something he was holding, onto Mr Syed’s hand.  The primary judge described Mr Welch’s conduct in the first incident as follows:

“As he was being escorted from the club, the offender began to scuffle with Mr Mudge, as a result of which Mr Mudge suffered an abrasion to his neck caused by something held in the offender’s right hand.  On seeing the offender scuffling with Mr Mudge, Mr Syed left Blanchfield [Mr Welch’s co-offender] and went to Mr Mudge’s aid, pushing the offender away from Mr Mudge.

On being left alone, Blanchfield attacked Mr Syed, punching him and causing him to fall to the ground.  When this happened, the offender, still holding the thing in his right hand, hit Mr Syed’s right hand, causing a laceration to his right hand, after which both Blanchfield and the offender kicked Mr Syed to his face and body, causing bruising to his face and body.  Then Blanchfield and the offender left the club.  The object that was held by the offender in his right hand during the assaults upon Mr Mudge and Mr Syed was not identified by either Mr Mudge or Mr Syed or found at the scene of the incident.

After the incident Mr Syed was taken to Canberra Hospital where the laceration to his right hand was sutured.  Unfortunately, I do not have the hospital’s discharge summary or a doctor’s report as to Mr Syed’s injury, treatment or prognosis.”

1. The prosecution for those offences commenced only in June 2009.  Mr Welch was committed for trial for the nightclub incident and on 28 January 2010 he was admitted to bail by this Court.  However, on 13 March 2010, less than two months later, while on bail, the second series of offending occurred.  The primary judge’s findings about that offending and the injuries that his Honour found occurred are set out below:

“During the early hours of 13 March 2010 Mr Bradley Spence, Mr Andrew Paul Connor, Mr Christopher Murphy, Mr Samuel Bland and Mr Nicholas Blanchfield were together drinking beer in a shed at the rear of premises at 16 Kootingal Street Giralang, in the ACT.  They had come together to celebrate the birth of Mr Connor’s daughter.

At some time about 4 am, Mr Bland and Mr Blanchfield left the premises to go somewhere, and where has not been identified, to obtain a further supply of beers.  However, within a few minutes they returned to the premises and told Mr Spence, Mr Connor and Mr Murphy that, “They’re coming.”

“They” were Steven Paul Beattie, Benjamin Thomas Sherd,  Russell Lee Tilley and the offender and each of them was armed with a weapon, either a wooden baseball bat, a metal pole or, as in the case of the offender, a wooden axe handle.

On Beattie, Sherd, Tilley and the offender arriving at the rear of the premises Beattie, Sherd and Tilley attacked Mr Spence, Mr Connor and Mr Murphy with the weapons with which they were armed.

Although he did not participate in the attack upon them, the offender aided Beattie, Sherd and Tilley in their attack upon the victims by:

1.going to the premises with them knowing what they intended to do,

2.being present at the premises when they attacked the victims,

3.being armed with a wooden axe handle and being prepared to use it if necessary and,

4.making threats towards the victims during the attack upon them.

At about 4.15 am police attended at the premises.  They found Mr Spence with injuries to his face and arms, Mr Connor with injuries to his face and legs and Mr Murphy with injuries to his face, body and legs.  Although I know that Mr Spence and Mr Murphy were taken to Calvary Hospital for treatment and that Mr Connor was taken to Canberra Hospital for treatment, I do not have a hospital discharge summary or doctor’s report as to the nature and extent of the injuries, the treatment or the prognosis.  However, happily, I have a victim’s impact statement from Mr Spence, Mr Connor and Mr Murphy and I will refer to those statements later.

…

I have mentioned that I have a victim’s impact statement from Mr Spence, Mr Connor and Mr Murphy. 

Mr Spence suffered:

1.       a fracture of his nose,

2.lacerations to his forehead, his left eyebrow and his right leg, which required suturing in hospital,

3.lacerations to his right shoulder,  and

4.bruising to both eyes, right shoulder, back and legs.

He has been left with scarring to his forehead, left eyebrow, nose and right leg.

Mr Connor suffered:

1.lacerations to his face and head, and

2.bruising to the left side of his chest and to his left leg. 

He has been left with scarring to his face, anxiety, depression and insomnia.

Mr Murphy suffered:

1.lacerations to his face, and

2.bruising to his face, back and both legs. 

He has been left with disturbed sleep and anxiety.  Also he has changed his place of residence. 

The extent of the injuries suffered by a victim of an assault is part and parcel of the objective seriousness of the assault.  As I have said already, the assaults upon Mr Spence, Mr Connor and Mr Murphy by Beattie, Sherd and Tilley, in which the offender aided, are serious examples of the offence of assault occasioning actual bodily harm.”

1. The appellant was arrested on 29 March 2010 and was remanded in custody for a further 46 days, of which his Honour took account in imposing sentence.  Mr Welch was committed for trial on the 2007 nightclub incident in July 2010 and pleaded guilty on arraignment before a judge of this Court on 26 October 2010.  On 18 November 2010, he pleaded guilty on arraignment for the March 2010 incident before another judge of this Court.

1. The primary judge found that, on each of the two occasions, the appellant’s offending constituted a serious example of the offence of assault occasioning actual bodily harm.  He found that both were unprovoked attacks upon unsuspecting victims.  Both were committed in company, although only the second involved the use of weapons, and both caused extensive, albeit not life threatening or permanent, injuries to the victims, apart from substantive scarring.  As noted above, the primary judge also found that Mr Welch had hit Mr Syed’s hand with an unidentified object.  His Honour found that a seriously aggravating factor for the second series of offending was the fact that it was committed while Mr Welch was on bail for the nightclub incident awaiting his sentencing.

1. His Honour allowed a 20% discount for the appellant’s pleas of guilty.  The primary judge found that he was unable to say that Mr Welch was remorseful for having committed the offences. He found that nothing in the pre-sentence report revealed any remorse by Mr Welch for what he had done.

1. However, as became evident in the hearing of the appeal, those findings of Mr Welch’s lack of remorse were erroneous.  This was because his Honour failed to appreciate the substance of two reports in evidence that had been prepared by a counsellor, Phillip Fisher.  The first report was dated 2 February 2011 and the second 27 April 2011.  The latter of those reports was tendered before his Honour on the day of the sentencing hearing.  Mr Fisher recorded substantive statements of remorse by Mr Welch.  In those statements the appellant said that:

•     he regretted what had happened in the most recent incident every day of his life;

•     he was extremely sorry that others were injured as a result of his actions in both incidents;

•     he had been involved in both incidents;  and

•     he had realised, since the offending, that the injuries caused by him could have been more serious than they were.

1. In a statement recorded in the second report, Mr Welch referred to the March 2010 incident as being the worst day of his life and expressed the wish that he had not become involved in what had occurred.  The counsellor stated that:

“Most importantly again [he] expressed deep regret that people had been hurt.”

That evidence was unchallenged.

1. In our opinion, his Honour was in error not only in paying no regard to those statements but also in finding that nothing in Mr Fisher’s reports had referred to the appellant’s remorse for the first incident.  Clearly Mr Welch had expressed his remorse in respect of both.

1. The primary judge noted that Mr Welch had taken steps towards his rehabilitation including ceasing to drink alcohol and ceasing to mix with former friends who were his co-offenders.  His Honour noted that the appellant had attended counselling and had completed an anger management program.  His Honour accepted that Mr Welch had the support of his family in his rehabilitation efforts.

1. The primary judge imposed the sentences that we have noted.  His Honour then turned to consider a submission made by the appellant as to his sentence being served wholly or partly by periodic detention.  His Honour rejected that option in its entirety, saying that he did not accept that service of the sentences on a periodic detention basis was appropriate.

1. However, in our opinion, his Honour erred in failing to consider whether some portion of the sentence could have been imposed by way of periodic detention after a period of full-time detention as part of a rehabilitative effort, thus recognising the appellant’s attempts to improve himself. Further, his Honour also failed to take account of the uncontested evidence of the appellant’s expressions of remorse on two occasions in considering the option of some term of periodic detention after a period of full-time imprisonment.

1. In the circumstances, we are of opinion that the overall sentences imposed for the first incident of offending were excessive.  Having regard to all of the factors to which we have referred, it is appropriate to set aside his Honour’s sentences for those two offences.  Instead we would impose a sentence of imprisonment for the first offence, of the assault upon Mr Mudge, of four months dating from 28 March 2011 (so as, like his Honour, to take account of the 46 days the appellant served on remand).  We would impose a sentence for the assault upon Mr Syed of 12 months’ imprisonment dating from 28 March 2011 and completing on 27 March 2012.  Thus, the first two sentences should not be cumulated while recognising that the term of the second will considerably exceed the first.

1. We are also of opinion that no error has been shown in the head sentences imposed by his Honour in respect of each of the three charges for the March 2010 incident.  However, the periods of accumulation and the manner in which those sentences should be served should be set aside and in lieu the sentences for those three offences should be adjusted so as to provide for the period of full-time imprisonment to conclude on 27 September 2012 (a total on the five charges of 18 months) and that the offender serve periodic detention for a further nine months concluding on 27 June 2013.  That would require a non-parole period to be coterminous and conclude on 27 June 2013.

Steven Paul Beattie v The Queen

Benjamin Thomas Sherd v The Queen

1. We now turn to the appeals against sentence of Mr Beattie and Mr Sherd.  As we have mentioned above, each was convicted on three counts of assault occasioning actual bodily harm on their three victims in the incident of 13 March 2010.  His Honour sentenced each of these offenders to imprisonment for two years and nine months with a non-parole period of one year and nine months commencing on 22 June 2011. 

1. Significantly, in these appellants’ cases, the agreed facts on which they were sentenced placed Mr Welch in the position of the ring leader of the offending.  Thus, the basis upon which each of Mr Beattie and Mr Sherd was sentenced for these offences had a substantive difference to that on which Mr Welch had been sentenced as having aided the assaults.

1. His Honour noted that at the time of the offences Mr Sherd was 22 and a half years old and Mr Beattie 25.  The agreed facts upon which each of the pleas were entered are set out in his Honour’s judgment:

“At about 11 pm on 12 March 2010 Mr Connor, Mr Murphy and Mr Bradley Spence came together at the Kaleen Bar and Bistro, a restaurant in Kaleen in the ACT, to celebrate the birth of Mr Connor’s first child earlier that day.

On their arrival at the restaurant, Mr Connor, Mr Murphy and Mr Spence came upon Mr Sherd and a co-offender, Mr David Welsh.  Mr Connor, Mr Murphy and Mr Spence knew Mr Welsh and Mr Sherd.

At about 12 midnight the five men, the three victims and the two offenders, left the restaurant and went to the Dickson Tradies Club in Dickson in the ACT.

At some time between 2 and 3 am on 13 March 2010 Mr Connor, Mr Murphy and Mr Spence left the club and went to Mr Connor’s home in Gundulu  Place in Giralang in the ACT.  Mr Welsh and Mr Sherd were not invited to Mr Connor’s home.

However, shortly after Mr Connor, Mr Murphy and Mr Spence had arrived at Mr Connor’s home, Mr Welsh and Mr Sherd arrived at the home in a car driven by Mr Welsh.

On being told that he and Mr Sherd were not welcome at the home, Mr Welsh performed a ‘burn out’ on the home’s front lawn using his car, thereby ‘chewing up’, as it were, the lawn.  Mr Welsh’s act caused an exchange of words between Mr Connor, who was understandably angry by what Mr Welsh had done, and Mr Welsh, which exchange ended when Mr Connor urinated on Mr Welsh’s car.  Mr Connor’s act caused an exchange of punches between Mr Welsh and Mr Connor, which exchange ended when Mr Welsh, shouting his intention to take revenge, and Mr Sherd entered Mr Welsh’s car and Mr Welsh drove it away.

After leaving Mr Connor’s home and sometime between 3 and 4 am, Mr Welsh and Mr Sherd gathered together Mr Beattie, Mr Russell Lee Tilley and another man named Matt, who has not been fully identified.

At about 3:30 am Mr Connor, Mr Murphy and Mr Spence left Mr Connor’s home and they walked to the home of two friends, Mr Benjamin Kelleher and Mr Nicholas Blanchfield, at 16 Kootingal Street in Giralang.  En route to the Kootingal Street home, they stopped at the home of Mr Glen Dunstan and Mr Connor spoke to both Mr Dunstan and Mr Dunstan’s girlfriend, Ms Chloe Beaver.  I do not see this stopping as important.

At about 4 am Mr Welsh, Mr Sherd, Mr Beattie, Mr Tilley and Matt arrived at Mr Connor’s home in Mr Welsh’s car.  After they had left the car, they went to the boot of it and after the boot lid had been raised, each of them, other than Matt, took a weapon, either a wooden axe handle, a hollow metal pipe, a baseball bat or a machete from the boot.  Two of them, of whom one was armed with the pipe, went to the home’s front door.  The other three of them, of whom one was armed with a shiny silver weapon, probably the machete, walked towards the back of the home.  All this can be seen on the security camera recording,, exhibit G.

After discovering that they were not at Mr Connor’s home, Mr Welsh, Mr Sherd, Mr Beattie and Mr Tilley walked off towards the Kootingal Street home in search of Mr Connor, Mr Murphy and Mr Spence.  En route to the Kootingal Street home, they too stopped at the home of Mr Dunstan.  Again, I do not see this stopping as important.  I digress here to say that there is nothing to suggest that Matt, who had been with the others at Mr Connor’s home, accompanied them to the Kootingal Street home.

Shortly after 4 am when they were in the shed at the rear of the Kootingal Street home drinking beer, Mr Connor, Mr Murphy and Mr Spence heard someone shout: ‘They're coming’.

‘They’ were Mr Welsh, Mr Sherd, Mr Beattie and Mr Tilley, and, as I have said already, each was armed with a weapon, which was, in the case of Mr Welsh, a wooden axe handle - see paragraph 25 of my reasons for sentence in the case of Mr Welsh.

After being told: ‘They’re coming’, Mr Connor, Mr Murphy and Mr Spence walked to the front of the Kootingal Street home, from where they saw Mr Welsh, Mr Sherd, Mr Beattie and Mr Tilley approaching them and they then returned to the rear of the home.

Mr Connor, Mr Murphy and Mr Spence were followed to the rear of the Kootingal Street home by Mr Welsh, Mr Sherd, Mr Beattie and Mr Tilley and then they were attacked and beaten by Mr Sherd, Mr Beattie and Mr Tilley using the weapons with which each was armed, with Mr Welsh, the ringmaster, as it were, standing back and watching what was happening in front of him.

Within a minute or two of the attack having started a neighbour called out: ‘I’m calling the police’ and the attackers, Mr Sherd, Mr Beattie and Mr Tilly, stopped their attack upon Mr Connor, Mr Murphy and Mr Spence and they with Mr Welsh ran off.

At about 4:15 am police arrived at the Kootingal Street home.  They found Mr Connor with injuries to his face and chest - see the photographs exhibit A4; Mr Murphy with injuries to his face, left arm, buttocks and legs – see the photographs exhibit A2; and Mr Spence with injuries to his face, right shoulder, back and legs - see the photographs exhibit A3.  Police arranged for Mr Connor to be taken by ambulance to Canberra Hospital and for Mr Murphy and Mr Spence to be taken by ambulance to Calvary Hospital for treatment.  Unfortunately, I do not have a hospital discharge summary or a doctor’s report as to the injuries, diagnosis, treatment or prognosis related to any of Mr Connor, Mr Murphy or Mr Spence.  But, fortunately, I have a victim impact statement of each of them and I will refer to those statements in due course.  I think that, from the descriptions of their injuries stated in the victim impact statements, and from the photographs of those injuries, Mr Connor was more severely injured than either Mr Murphy or Mr Spence.

The attack by Mr Sherd, Mr Beattie and Mr Tilley upon Mr Connor, Mr Murphy and Mr Spence was not spontaneous or spur of the moment, rather it was planned by Mr Welsh, who gathered Mr Beattie and Mr Tilley around him and Mr Sherd to form a posse of vigilantes and then he armed them to seek his revenge for Mr Connor urinating on his car and then exchanging punches with him.  Accepting, although I do not, that Mr Welsh might have had a reason to be angry towards Mr Connor, that reason did not justify or excuse what he did towards Mr Connor, Mr Murphy or Mr Spence.  In any event, Mr Sherd, Mr Beattie and Mr Tilley did not have any reason to be angry towards Mr Connor, Mr Murphy or Mr Spence and their attack using weapons upon Mr Connor, Mr Murphy and Mr Spence was brutal, unprovoked, gratuitous, unjustifiable and inexcusable.  The conduct of Mr Welsh, Mr Sherd, Mr Beattie and Mr Tilley was cowardly in the extreme.  Their attack upon Mr Connor, Mr Murphy and Mr Spence merits the strongest condemnation and appropriately salutary punishment.”

1. His Honour rejected evidence given by Mr Beattie that he had not been armed during the assault and had only used his fists.  As a result of Mr Beattie giving that evidence and, so, contradicting his acceptance of the agreed facts and his role recorded in them, two of the victims were required to give evidence.  That further aggravated the injuries and psychological harm that had been done to them.  His Honour rejected Mr Beattie’s resiling from the agreed facts.  The primary judge accepted the evidence of the two victims and, importantly, of Mr Sherd, who had given evidence on his own plea, in which he frankly acknowledged his role in the offending.

1. Each of Mr Beattie and Mr Sherd was charged in the Magistrates Court in June 2010.  In September 2010, Mr Beattie pleaded guilty and was committed for sentence in this Court.  Mr Sherd was committed for sentence in this Court on a plea of guilty on 24 January 2011.

1. The primary judge described the victim impact statements and the effect of the offending on each of the victims.  These again were in slightly different terms to the basis upon which his Honour had sentenced Mr Welch.  His Honour made these findings about the severity and effect of the assaults on the victims:

“As I have said already, I have a victim impact statement from each of Mr Connor, Mr Murphy and Mr Spence.  The attack has left its mark upon each of them.  Mr Connor has facial scarring, anxiety and sleep disturbed by nightmares.  He lacks concentration in his employment.  He is hyper vigilant.  He has changed his place of residence, moving interstate - see exhibit E.  Mr Murphy suffers anxiety and sleep disturbed by nightmares.  He is hyper vigilant.  He too has changed his place of residence - see exhibit C.  Mr Spence has facial scarring and anxiety.  He is afraid for his family’s safety.  He has changed his telephone number and email address and he has removed his Facebook entry - see exhibit D.

I am required, by s 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT), to consider each victim’s victim impact statement in deciding how the offenders should be sentenced for the offences. The physical and emotional or psychological effect of an offence upon a victim of the offence is part and parcel of the objective seriousness of the offence. I consider that the offences of assault occasioning actual bodily harm committed by Mr Sherd, Mr Beattie and Mr Tilley upon Mr Connor, Mr Murphy and Mr Spence to be objectively serious examples of that offence and to be near, if not at, the high end of the range of objective seriousness for offences of that kind.”

1. His Honour noted that the offending by each of Mr Beattie and Mr Sherd was an objectively serious example near, if not at, the high end of the range of objective seriousness for offences of this kind. 

1. Turning to the sentence imposed on Mr Sherd, his Honour noted that his upbringing in a happy home was marred only by the effects of a traumatic illness suffered by his father from which he eventually passed away.  The primary judge accepted that Mr Sherd had reasonable prospects of rehabilitation.

1. The primary judge found that Mr Sherd had been abusing alcohol for some years and that this offending again had occurred when he was drunk.  His Honour found that Mr Sherd had no history of drug abuse.  He also recorded that Mr Sherd was working, earning an income and in good health.  His Honour noted that Mr Sherd had a record of two offences for drink driving and a very recent conviction for breaching a 12 month good behaviour bond for damaging property for which he had been sentenced on 20 April 2011.

1. In dealing with this appellant’s personal circumstances, his Honour found that Mr Sherd was single, never having married, but was engaged to marry Ms Brown and was the father of their baby, now aged five months.  His Honour found that Mr Sherd “… does not have anyone dependant on him”.  After referring to Mr Sherd being also the step-father of Ms Brown’s first child, then aged four years, the primary judge said:

“I suppose in the way of things that his mother and Ms Brown will be affected in some or other way if he were sentenced to imprisonment, but there is nothing in the evidence to how and to what extent they may be affected.”  (emphasis added)

1. These findings were contrary to the uncontested evidence before his Honour.  Both Mr Sherd and Ms Brown had given unchallenged oral evidence that Mr Sherd was the breadwinner for the family unit; he was a carer for both the stepchild and his own child and was supporting his family, being Ms Brown and the two small children. 

1. In dealing with Mr Sherd’s attitude towards the offending, his Honour referred to a pre-sentence report.  His Honour concluded from that report that he doubted that Mr Sherd was genuinely remorseful for what he and the others had done to each of the victims.  Once again, while his Honour may have been entitled to refer to what was said in that report, he did not refer to the unchallenged oral evidence that Mr Sherd gave during the course of the sentencing hearing.  The appellant was asked how he now felt about what he had done, and responded:

“I couldn’t tell you.  Recently I have just become a father and just to know what we’ve done is absolutely shocking.”

1. When asked how he felt about the persons whom he had injured, Mr Sherd said that he felt bad for them and his family.  He also accepted that he had used weapons, although he was not prepared to accept that he had intentionally inflicted harm upon anyone.  But he did accept that what he had done had caused harm to persons.

1. In our opinion, his Honour’s sentencing of Mr Sherd miscarried by reason of his failure fully to appreciate the appellant’s remorse in the evidence that we have quoted, the dependence of his family unit upon him as an income earner, his frank acknowledgement of his own role and use of weapons in the incident, part of which his Honour used in rejecting Mr Beattie’s evidence that sought to depart from the account of the offending in the agreed facts.

1. No error has been shown in the head sentences imposed by his Honour for each of Mr Sherd’s offences.  However, the non-parole period and the manner in which the sentences of imprisonment should be served results in sentences which were excessive.  Mr Sherd should be resentenced so that he will serve a period of full-time imprisonment of one year, concluding on 21 June 2012, followed by a period of nine months’ periodic detention to conclude on 21 March 2013 with a coterminous non-parole period.

1. We now deal with separate issues that arise in the appeal of Mr Beattie.  The primary judge noted that Mr Beattie grew up in an unstable and dysfunctional environment both as a child and a teenager.  His mother lived with a number of men who had been abusive and violent towards the family unit.  Mr Beattie had been in and out of work over his life after leaving school, but from January 2011 had obtained stable full-time employment.  Over his life the appellant had abused alcohol but had ceased using drugs by the time of his sentencing.  He enjoyed good health.

1. The primary judge found that Mr Beattie was single, never been married, and did not have anyone dependent on him.  His Honour noted that he had been in a relationship with his present girlfriend for the past six months and that she was pregnant with their child.  He said:

“Like Mr Sherd, I suppose in the way of things his mother and his girlfriend will be affected if he were sentenced to imprisonment, but again, there is nothing in the evidence of how or what extent they may be affected.”

1. In our opinion, that finding was contrary to the unchallenged evidence given by Mr Beattie.  He gave evidence that, first, he was supporting his mother, who was then not well, in the home which he shared with her and his partner, who was expecting their child.  Mr Beattie said that he was also supporting his partner while she was undertaking an educational course and going through her pregnancy.

1. The primary judge found that Mr Beattie had reasonable prospects of rehabilitation and a better than average chance that he would not reoffend.  His Honour also made adverse findings about Mr Beattie’s lack of remorse.  Those findings were also challenged by Mr Beattie.  However, having regard to Mr Beattie’s recanting from the agreed facts, his assertions to his Honour that he had only used his fists in the assaults on the victims, and that the victim, Mr Connor, was armed with a mop during these attacks, for which there was no supporting evidence, his Honour’s finding of lack of remorse by Mr Beattie was not shown to be erroneous.  Indeed, we would observe that Mr Beattie appeared to lack real insight into his own wrongdoing.

1. The head sentence imposed on Mr Beattie has not been shown to be erroneous.  However, his Honour ought to have imposed the sentences of imprisonment having taken into account Mr Beattie’s rehabilitative prospects together with his family circumstances and his mother’s and girlfriend’s dependence on him.

1. We would adjust the way in which his sentences should be served as follows.  Mr Beattie should serve a period of full-time imprisonment for one year to conclude on 21 June 2012.  Having regard to Mr Beattie’s lack of remorse and insight into his own wrongdoing, we would impose a period of one year’s periodic detention thereafter to conclude on 21 June 2013 with a coterminous non-parole period.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:      9 March 2012

Counsel for the First Appellant:  Mr S Whybrow
Solicitor for the First Appellant:  Ben Aulich & Associates
Counsel for the Second Appellant:                   Ms T Warwick
Solicitor for the Second Appellant:                   Darryl Perkins Solicitors
Counsel for Third Appellant:  Mr K Archer
Solicitor for Third Appellant:  BevanSnell Lawyers
Counsel for the Crown (Respondent):              Mr Jon White
Solicitor for the Crown (Respondent):              Director of Public Prosecutions for the ACT
Date of hearing:  9 February 2012 
Date of judgment:  9 February 2012