Director of Public Prosecutions v Crutchett
[2023] ACTSC 193
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Crutchett |
Citation: | [2023] ACTSC 193 |
Hearing Date: | 14 June 2023 |
DecisionDate: | 21 July 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [116] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – where offender threw can into fire – lower range of objective seriousness – alcohol abuse disorder – pleas of guilty – remorse – suspended sentence imposed – good behaviour order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 |
Cases Cited: | Alvarez v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 |
Texts Cited: | Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5) |
Parties: | ACT Director of Public Prosecutions Benjamin Francis Crutchett (Offender) |
Representation: | Counsel S Bargwanna (DPP) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions Fortify Legal (Offender) | |
File Number: | SCC 47 of 2023 |
LOUKAS-KARLSSON J
Introduction
On 27 February 2023, Mr Benjamin Francis Crutchett (the offender) pleaded guilty to two counts of recklessly inflict grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for each offence is 13 years’ imprisonment.
It must be acknowledged by this Court that no sentence I can impose will resolve the lasting impact of the injuries sustained by each victim in this matter. As this Court has noted before, the law requires I judge the offender, not only in relation to consequences of his actions, but in accordance with the law and the principles of sentence which I must apply.
Agreed Facts
The agreed facts are set out in the Statement of Facts tendered by the prosecution on sentence and summarised as follows.
On 6 August 2022, the offender was at a social gathering at a residence in Isabella Plains in the Australian Capital Territory (ACT). Also present at the address were the first victim (CM), the first victim’s husband, the second victim (KG), the second victim’s husband, and the offender’s former partner.
At about 11.20pm, the people present at the residence were sitting around a brake drum potbelly fire. The fire started to die down and the offender decided to attempt to reignite it. After being unable to reignite the fire, the offender entered the garage and obtained a can of aerosol accelerant. The defendant attempted to relight the fire by spraying the aerosol into a beer can and applying it to the flame, however this had little effect. The offender then threw the aerosol can onto the fire.
After approximately a minute or so without anything happening, KG and CM returned to where they were seated, between 1-1.5 meters away from the drum. The offender said to both KG and CM, "Don't sit there, it hasn't gone off."
About this time, an explosion occurred with flames shooting up from the fire to a height of approximately 1 meter above the fire. The flame moved outwards resulting in both KG and CM being covered in flames from the fire.
Both victims’ clothing ignited, causing another person in attendance to run and take hold of KG and the offender to run to CM to smother the flames. Both victims were put in a shower. ACT Ambulance Service was subsequently contacted.
An argument then occurred between a person in attendance and the offender, resulting in the offender hiding in the pantry.
Both victims were transported to the Canberra Hospital Intensive Care Unit. KG was intubated and transported as a high-risk patient to Concord Hospital in Sydney. CM suffered from severe burns covering her chest, neck and head and was also transferred to Concord Hospital for specialist treatment.
Detailed medical documentation for KG provided in the Statement of Facts outlined clinical observations on examination at the Canberra Hospital Emergency Department on 7 August 2022. KG was triaged as a ‘category one’ patient with ‘full thickness facial burns, requiring airway support on arrival’. KG suffered ‘6% total body surface area superficial to mid dermal burns to face, right ear, chest, right hand and forearm’, as well as ‘pink skin discolouration document of face, right arm and hand’. Advice was sought from the specialist burns team at Concord Hospital and an inter-hospital transfer was arranged. KG was transferred to Concord Hospital on 7 August 2022 and received treatment including ‘ventilation and sedation, debridement of face and application of dressings, intravenous antibiotics and anticoagulant medication, occupational therapy, physical therapy, psychological review, speech pathology review and ophthalmology review’ until her discharge on 12 August 2022. KG required outpatient specialist care by healthcare professionals at Concord Hospital following her discharge, with the last consult occurring via telehealth on 20 September 2022.
Photographs of the injuries suffered by KG are contained in the prosecution tender bundle.
Detailed medical documentation for CM provided in the Statement of Facts also outlined clinical observations on examination at the Canberra Hospital Emergency Department on 7 August 2022. CM was triaged as a ‘category one’ patient with ‘facial burns from a bonfire explosion’. CM suffered ‘2% total body surface area superficial dermal burns to face, right ear and anterior neck, with blistering’. Advice was sought from the specialist burns team at Concord Hospital and an inter-hospital transfer was arranged. CM was transferred to Concord Hospital and received treatment up until discharge on 12 August 2022. The treatment included ‘debridement of face and application of dressings, intravenous antibiotics and anticoagulant medication, Ear, Nose and Throat surgical review, physical therapy, psychological review, speech pathology review, and ophthalmology review’. CM required outpatient specialist care by healthcare professionals at Concord Hospital after discharge, with the last consult occurring via telehealth on 2 September 2022.
Photographs of the injuries suffered by CM are contained in the prosecution tender bundle.
About 3.15pm on 7 August 2022, the offender was placed under arrest and transported to the City Police Station where he participated in a Record of Interview. The offender made admissions to placing the aerosol can on the fire but felt that the whole party was to blame due to their level of intoxication and that no one explicitly told him not to do it.
Victim Impact Statement
Two Victim Impact Statements (VIS) were tendered at the sentence hearing authored by the victims in this matter. The VISs are set out in full below.
The VIS of KG is as follows:
The easiest and simplest way for me to explain how I feel since the incident is that there was me before it happened and there is me now. The only other time I have felt that kind of shift or change was when I had a child. The whole situation feels like a big black engulfing cloud that follows me around everywhere I go. There is not a day that goes by that it does not enter my thoughts or I am reminded in some way of what happened. It is one of the most defining moments of my life and an experience I do not wish to repeat.
Due to concerns about the severity of my injuries, I was put into an induced coma shortly after the incident. My husband, family and close friends were not sure if I was going to survive. The image of seeing me unconscious with a breathing tube was very distressing for the people who saw it.
Waking up in Concord Hospital to be told that I had been burnt was terrifying. Even months later thinking about that moment still makes me emotional.
I sustained burns to my chest, forehead, both cheeks, top of head/scalp, hair, chin, both eyelids, right ear, right forearm and right (dominant) hand. 6% of my body was burnt.
During the week I spent in hospital and the first few weeks after that I unable to care for myself and had to rely on my husband and parents to do nearly everything for me. Whilst I am grateful for their love and support, I am an independent person who does not like to rely on others.
Each and every day brings a moment in which I see and am reminded of my scars and become upset, even if it is only briefly. I do not like the way I look now, and I struggle to come to terms with the fact that the scars will be a permanent feature on my face, fingers, hand and arm.
I have regained use of my right hand and arm however I have lost some feeling in my skin, and it is unclear whether this will return over time.
I wear a compression glove which starts just below my fingernails and goes to my elbow. I will need to wear this glove until the scars have completely matured – which is when they have lost all their colour and will no longer change. This helps to keep the scars flat and smooth.
My scars are painful and constantly itch. In particular the scar on my chin, it is easily irritated and a constant source of discomfort. I take an antihistamine every day to try to control or reduce the itching, but this only provides so much relief.
For the rest of my life, I will need to be careful about sun exposure not only on my scars but on all the skin that was burnt.
I moisturise my hand, arm and face multiple times during the day and do daily stretches to regain and keep full use of my fingers, hand and face.
Every evening before going to bed I am required to strap pieces of silicone tape to my chin and on my hand and arm which I then pull my compression glove over the top of. This helps to soften the scars and keep them flexible. For a few months I also wore a compression face mask to bed to help adhere the silicone to my chin.
For a period after the incident, I felt constantly on edge, as though I could not relax. Loud or sudden noises shocked me. I also felt numb, and it was difficult to find enjoyment in life. I have spent a lot of time in counselling and trying to work through my emotions and feelings which has been very successful. I am fortunate to have this kind of support available to me.
My young daughter, husband, parents and other relatives, as well as close friends, have experienced significant emotional distress and upset. My daughter now has a fear of me being around fires and on multiple occasions has referred to me being burnt as the worst thing that has ever happened. I was unable to see her for the week I was in hospital in Sydney and when she first saw me, she found my appearance very confronting and upsetting.
I suffered chronic conjunctivitis for the first few weeks in both my eyes due to my eyelashes being burnt off and I still often get infections in my eyelash follicle that cause my eyelids to swell.
I occasionally have upsetting dreams about the accused.
I have had the financial costs of travel to Sydney to attend appointments at the burns unit. I was transferred to Concord Hospital in Sydney not long after the accident as the Canberra Hospital did not believe they were in a position to give me the best care possible – there is no burns unit in Canberra. As a result, the plastic surgeons in Canberra will not see me at this time as I started my treatment in Sydney.
There is still uncertainty about what further treatment I will require. I have been referred back to the burns unit at Concord Hospital in Sydney to have my scars examined by the team there. I may require further treatment, or they may tell me that my current situation is as good as things will get for me.
Due to the changes to my physical appearance, I do not feel confident in going to my place of work. I have negotiated with my employer to not have to attend my workplace for the foreseeable future. I am fortunate to have an understanding employer and that I am able to work from home. I was also fortunate that I had enough paid sick leave to cover the month that I needed to take off directly after the incident and also other paid leave that I have been required to take for regular counselling and occupational therapy appointments.
Since the incident I have lost a lot of self-confidence. I did not feel comfortable going out in public as people would stare at me because of my scars and my compression glove. It is very rare that I do not notice someone taking a second glance or looking at me for an extended period of time whilst I am out in public. I have spent a lot of time working through these issues with my counsellor and am slowly getting better at dealing with it.
At times I am anxious to think about what the future will hold. It has already been a long, painful and exhausting journey and it is not over yet. Though I badly want there to be, there is no definite end date. I find the thought that these are lifelong physical, emotional and mental injuries confronting, upsetting and overwhelming.
The VIS of CM is as follows:
Physical injury
I was burnt to my face and my ear. I was in hospital in ICU in Canberra for 2 days and then I was airlifted to Sydney. Where I was in Concord Hospital to the burns unit. I stayed in hospital for a total 9 days and then I needed to stay in Sydney close to the hospital for a further 3 days.
I had one operation to have a skin graft on my face. The pain was horrendous it was the worst pain I have ever experienced in my life. I cried constantly.
My injuries were so severe, and I had nightmares that they wouldn’t be able to save the skin on my face that haunts me every day.
My face has changed, and I have scars that will never go away. I have to go back to Sydney to see the plastic surgeon and the burns unit. This is a part of my life forever. The physical injury will never properly heal, it will be forever and something I will eventually have to come to terms with.
I also wanted to mention, the scars on my lips are only fixable by surgery now.
Mental injury and emotional suffering
This whole experience has changed who I am. This has affected how I feel about people. I don’t trust people. I have a lot of social anxiety, I find myself withdrawing from situations. I can’t believe someone would do that – it is beyond my comprehension. It was like he just didn’t care. The fact that he has fought this court case. The fact he has never said I am sorry.
I live with fear and anxiety every day of my life. I choose my social activities wisely. I have changed as I used to be more trusting and outgoing. I loved having social gathering and I loved meeting new people – this is now not the case.
I spend most of my time with [my] husband and my kids. I don’t really have a lot of friends anymore. I certainly don’t have new friends as this would be too much for me.
[It has] caused me so much grief and I cry a lot. My lips are constantly sore. If someone has an open fire in their home I get scared. I am depressed all the time and I feel so different. I look different and not in a good way. It’s hard for me to cope with everything.
Economic loss
I lost time at work, so my wage went down dramatically. This was very difficult. I had just started a new job so I didn’t have any leave. This caused us financial stress. My husband also had to take time of work.
My family also suffered, my in-laws had to cancel their trip to come look after my kids and my sister-in-law had to take time off from work and fly up from Melbourne to help with the kids. My children were without me and when I came back I was a different mum [and] they had to adjust. Not just looks wise.
I was not able to leave the house for 9 weeks (medical certificate) to ensure my graft [healed] properly. The cost was immense with all the medical treatments and creams I needed to buy to ensure my face and my skin would be ok.
We had to pay for the accommodation when we needed to stay nearby the hospital in Sydney and we will need to again every time we go to the burns unit. I have to have special creams for up to 12 months – this will be reviewed but I may have to be doing this for the rest of my life.
His actions have devastated me and my family the ongoing issues are immense and the fact that he seemed not to care that he has caused this pain and distress is unforgivable.
After all of this, there is the [me] before the accident and [me] after. I don’t think I will ever be the same.
Sections 33(1)(e) and (f) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) provide for consideration of resultant injury, loss and damage, as well as the effect on victim, the victim’s family and those able to make a VIS. The VISs provided by the victims outline the impact that the offending conduct has had on them in terms of physical, psychological and financial wellbeing. The victims have outlined how the injuries they suffered will result in long term consequences for their lifestyles, and the impact of their injuries on their family.
The Court acknowledges that the experience of the victims was traumatic. The Court further acknowledges the significant, long-lasting impact. This criminal offending has long term consequences for both victims.
Objective seriousness
A sentencing judge is required to identify where offending sits on the spectrum of objective seriousness. In R v Kilic [2016] HCA 48; 259 CLR 256 (Kilic), the High Court held (at [19]) that unless the maximum penalty for an offence is to be imposed:
A sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called.
The objective seriousness for the offence of recklessly inflicting grievous bodily harm is to be assessed by reference to the conduct of the offender and associated degree of recklessness, together with the nature of the grievous bodily harm to the victim: R v Bandy [2018] ACTSC 261; R v Sharma [2016] ACTSC 180; R v Myles [2017] ACTSC 194; R v Butters [2019] ACTSC 143 (Butters). The circumstances of the offending are also relevant: McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439 at [37].
The Statement of Facts outlined above details the relevant conduct of the offender. The offending conduct involved the offender throwing an aerosol can into a fire with other persons in close proximity. The aerosol can subsequently exploded, causing serious injuries to two bystanders. The agreed facts note that the offender attempted to warn the two victims that the aerosol can had not yet exploded as they approached the fire.
The conduct is clearly reckless. Despite the warning issued by the offender to the victims, throwing a highly flammable object into a fire with knowledge that bystanders were in close proximity was, nonetheless, reckless. However, the offender’s conduct was not premeditated or planned. Counsel for the offender correctly submitted the conduct appeared to be a momentary decision, albeit one in which the offender gave little critical thought to the potential serious consequences.
Like all bodily injuries, grievous bodily harm occurs on a spectrum from less serious examples to more serious examples. In this matter, KG and CM suffered injuries detailed earlier at [10]-[14], and in the victims’ own words at [17] and [18], including burns to 6% and 2% of their total body surface area respectively.
The prosecution submits that, while clearly serious, the injuries suffered by the victims are at the lower to mid range of objective seriousness relative to a spectrum of bodily injuries that could be considered grievous. In making this submission, the prosecution pointed to the amputation of limbs or removal of organs as examples of the most serious kind of grievous bodily harm.
Parties agreed that the overall objective seriousness of both offences is towards the mid range, taking into account the extent of the injuries suffered as well as the degree of recklessness. As I noted at the commencement of these sentencing reasons, no sentence I can impose will resolve the lasting impact of the physical and psychological injuries sustained by each victim in this matter. I have had regard to the VIS of each victim which clearly articulates the substantial and lasting harm. The law obliges the Court to make an assessment of objective seriousness. It is a dry legal assessment. It does not undermine the lived experience of the victims.
I accept the features identified by the prosecution and defence as set out above. It must be stated, however, that references to low, mid range and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24].
Nevertheless, an assessment of the objective gravity of an offence has always been an essential part of the sentencing process. It is not necessary for a judge to indicate where the offence falls in a scale of low, mid range, or high criminality; what is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also Kilic at [19].
Subjective circumstances
Section 33(1)(m) of the Sentencing Act requires the Court to consider the subjective factors relevant to the offender.
Pre-Sentence Report
In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
The offender was born and raised in Canberra, ACT. The offender described an unremarkable childhood where he was predominantly raised by his mother who he described as a disciplinarian. The offender described their current relationship in positive terms, however, stated his mother had been particularly critical of him during recent times due to her disappointment surrounding the offending behaviour.
The offender’s parents separated when he was one year old, and the offender reported no contact with his father for several years. The offender informed that he recommenced a relationship with his father at approximately eight years of age, and described him as ‘his favourite person’ prior to his death in March 2023. The offender stated his father’s death had been difficult to process, as they shared a close and supportive relationship.
The offender reported having a half-sister who is 10 years his senior. The offender recalled they first made contact when he was 16 years of age and stated she currently resides in Queensland. The offender described their relationship in positive terms and stated they maintain weekly telephone contact.
The offender stated he is currently single. The offender reported his on-again-off-again relationship of nine months broke down in recent times, and stated they had been residing together prior to the demise of their union. The offender disclosed his ex-partner had been supportive in relation to the commission of the current offences before the Court. The offender has no dependents.
The offender described his current accommodation arrangement as stable.
The offender stated he completed Year 12 education, describing school as a positive experience. After the completion of his formal education, the offender stated he completed a Certificate III in Sheet Metal Work and Fabrication. The offender recalled working in the metal work industry for a substantial period, and reported working for a number of employers across three jurisdictions over the years.
The offender was assaulted by a co-worker in April 2022 and has been the recipient of workers compensation payments since that time. The offender confirmed he could return to employment once medically cleared; such clearance may be granted in June 2023. Prior to this assault, the offender reported spending most of his leisure time outdoors and engaging in motorbike riding and fishing. More recently, the offender has participated in volunteer work multiple days per week. The offender reported that volunteering fulfilled his desire to socialise after the dissolution of multiple friendships following the commission of the present offences, involving his close friends.
The offender described his current financial circumstances as strained due to legal costs associated with the commission of the current offences before the Court.
The offender reported a continued friendship with a companion of 20 years, and described their connection in positive and supportive terms. The offender noted another long-term friend had suicided in March 2023, shortly before his father’s death. He stated his friend’s death had impacted him significantly.
The offender stated he commenced alcohol use at approximately 15 years of age, and described his consumption as sporadic during that time. He stated his consumption increased between 18 years of age and 34 years of age, where he would consume at least one standard drink per day during that time. The offender stated his alcohol consumption increased to approximately 10 standard drinks per day after he was assaulted in the workplace in April 2022. The offender reported self-medicating for mental trauma and physical pain, and described feeling depressed as he was rendered immobile whilst awaiting multiple surgeries.
The offender stated he had been reluctant to consume prescribed pain medication at that time due to a fear of dependency, and claimed the alcohol effectively managed his mental and physical ailments. The offender acknowledged his alcohol consumption became problematic, and confirmed he was intoxicated during the commission of the offences currently before the Court.
The offender stated his alcohol use decreased in January 2023, after he ceased drinking spirit alcohol. The offender stated he now consumes beer once per week and no longer considers his use as problematic. This was confirmed by the offender’s ex-partner who noted a decrease in his alcohol consumption in recent times.
The offender stated he commenced cannabis use at 13 years of age. He described sporadic use since that time, however noted his use increased after he was assaulted in the workplace in April 2022. He reported smoking approximately half an ounce of cannabis per week and stated he would use the substance daily. The offender also attributed his cannabis use to alleviating mental trauma and physical pain, stating he last used the substance in May 2023. The offender claimed he had weaned himself off cannabis by integrating it with tobacco and no longer considered his use to be problematic.
The offender commenced alcohol counselling with Directions ACT in February 2023 and described the sessions as beneficial. He reported engagement in five fortnightly Alcohol and Other Drug (AOD) counselling sessions, with the last appointment taking place on 24 May 2023. This was confirmed by Directions ACT, who noted the offender was regular with his appointments and engaged well during the sessions.
The offender stated his mental health had declined after the workplace assault, death of his father, death of his friend, and the loss of friendships after the offences occurred. The offender reported fortnightly engagement with a psychologist through his workers compensation claim, however, stated their sessions had been mostly based around the workplace incident. The offender stated he had sought a Mental Health Care Plan (MHCP) through his General Practitioner (GP) which provided him with six free psychologist sessions to address his grief and mental health in general. At the time of the PSR, the offender stated he was yet to engage, however, noted he was eager to commence sessions.
During the preparation of the PSR, the offender presented as visibly emotional and distressed when discussing the victims of the current offences before the Court. The offender reiterated many times that the commission of the current offences was an accident, and stated he did not intend to hurt anybody. The offender stated he had thought about the victims and the consequences of his actions every day, and acknowledged that his poor judgement resulted in the victims being injured.
The PSR author opined that the offender may benefit from ongoing engagement with a mental health professional and AOD support to address his substance misuse, trauma, grief and mental health issues. The offender was identified as suitable for a low level of intervention by ACT Corrective Services and suitable for a community service work condition.
Psychologist report – Mr Peter Watt
A Psychological Report (the Report) of Mr Peter Watt dated 7 June 2023 was also tendered and includes the following.
The Report details in brief terms the offender’s family history, education, leisure and employment history consistent with the PSR above at [31]-[48]. The Report mirrors the description in the PSR concerning the offender’s positive relationship with his previous partner, and current residence with his mother.
The Report details the offender’s ‘trauma history’ including that he was subjected to stern discipline from his parents as a child. The offender reportedly experienced significant traumatic events in his lifetime, including the following:
(a)a fractured skull after being knocked unconscious in a dodge ball accident at school in Year 5 or 6;
(b)exposure to zinc by-products in the workplace at 18-19 years old;
(c)a serious motor vehicle accident at 25 years old resulting in a posterior cruciate ligament (knee) injury and 30 stitches to his arm;
(d)the poisoning of his pet dog by an unknown person at his residence;
(e)an attempted assault with scissors whilst at a friend’s house in 2020;
(f)a workplace assault resulting in injury to his knee and right thumb in 2022;
(g)the death of his close friend and neighbour in March 2023; and
(h)the death of his father, also in March 2023.
As stated earlier, the offender reported he was ‘deeply affected’ by the loss of his friend and his father.
The Report recounts the offender’s criminal history, detailed at [86]-[87]. Of note, the report emphasises that the offender complied with the 18-month Good Behaviour Order (GBO) imposed in the ACT in relation to a driving offence, and an 18-month GBO imposed in NSW, also for traffic offences.
The Report detailed the offender’s drug and alcohol history, indicating at the time of this assessment that the offender currently smokes some cannabis and rarely drinks alcohol.
The offender reported that he started drinking alcohol from approximately 16 years of age, drinking nearly every day until he was 18 years old. The offender stated he would get “drunk” every weekend. Over the past 12 months, the offender stated that he was drinking around 10 standard drinks per day.
The offender identified using cannabis from 13 or 14 years old, however reported reduced use ‘this year’. The offender reported experimenting with ‘party drugs’ from 18 years of age, with regular use for around two years and ceasing at around 28 years old. The offender reported he commenced using methamphetamine from the age of 28 years. The offender stated that last time he used methamphetamine was June 2022.
The offender reported he had not previously been diagnosed with a mental health condition and was not previously prescribed any related medication, though he had recently seen his GP for a MHCP. The offender noted a family history of depression. The offender reported he attended a number of telehealth counselling sessions last year primarily related to his workplace injury. This was confirmed in evidence before me, and is detailed at [69]-[70].
The offender was administered the WHO General Health Questionnaire which analyses medical complaints and mental health symptoms measured in four scales: Somatic Complaints, Anxiety, Social Dysfunction, and Severe Depression. The offender received a total score of 17, which is above the threshold score of 12/13 considered positive for a psychiatric disorder. The related Anxiety and Social Dysfunction scales were found to be high, with significant symptoms including “sleep difficulties, feeling overwhelmed, nervousness, taking longer over tasks, feeling worthless with feelings of hopelessness and with lack of enjoyment in day-to-day activities”.
The offender also completed the Black Dog Institute Depression Anxiety Stress Scale, recording scores for depression and anxiety within the severe range. The offender was also assessed using the Achenbach Systemic Empirical Behaviour Assessment Adult Behaviour Checklist and registered scores on the Depressive Problems Scale above the 98th percentile–higher than 98 out of 100 scores of males in the age range, and between the 93rd and 98th percentile on the Anxiety and Avoidance Personality Problems scales.
The Neuropsychiatric Unit Cognitive Test was also administered to consider any ‘deficits’ in cognitive functioning including testing ‘attention, visuoconstructional (visual spatial skills), memory, executive (problem solving skills) and language skills’. Of these areas, the offender was found to have ‘significant memory problems’, more than two standard deviations below the normal range, most likely associated with cannabis and alcohol use.
In addition, the offender was administered the Alcohol Use Disorder Identification Test. The offender scored in the severe range for alcohol use disorder. The offender reported that, on a monthly basis, he had ‘failed to do what is normally expected of him because of his drinking’ and that, on a weekly basis, usually weekends, he would engage in a ‘heavy drinking session’. The offender also reported requiring ‘a drink in the morning to get himself going’. The offender identified that, on a weekly basis, he was unable to remember what had happened the night before due to drinking. The offender’s previous partner, his family and friends had expressed concern about his drinking and suggested he reduce it. The offender admitted that he had a problem with alcohol and stated that he had stopped drinking alcohol, except on rare occasions, since the incident. The offender also reported that he has attended the Directions ACT AOD Rehabilitation Program over the past four months, completing three phone consultations and two in person consultations prior to this psychological assessment.
According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5), the Report identified that the offender satisfied the criteria for the following conditions:
(a)Adjustment Disorder, with mixed anxiety and depressed mood;
(b)Cannabis Use Disorder, mild to moderate;
(c)Alcohol Use Disorder, severe, in early remission; and
(d)Stimulant Use Disorder, mild to moderate, in early remissions.
The offender reported that, on the day of the offences, he had been drinking alcohol at a gathering of friends, including his long-standing friend who is the husband of one of the victims. The offender stated that he had consumed around three full-strength beers whilst the group sat around a fire in a drum on the property. The offender reported that, over a period of about an hour before the incident, he started to drink from a 1 litre bottle of gin. The offender estimates he may have consumed up to 10 standard drinks over the hour. He said that others in the party were also drinking alcohol. The offender then recounted to the author of the Report a version of events consistent with the Statement of Facts.
The Report identified a nexus between the offending and the offender’s mental health conditions, stating that the offender’s mental health, alcohol use and related anxiety had a causal effect on his behaviour on the night of the offences. Due to his level of alcohol intoxication, the offender would not have had the capacity to make rational decisions and to stop his impulse to reignite the fire with an inflammable accelerant. After putting the aerosol can in the fire, he acknowledged the danger and warned the victims having realised the potential harm it could cause. It appears that the offender was self-medicating with alcohol and methamphetamine at the time following the workplace assault, which would have affected his judgement and behaviour.
The offender completed a relapse prevention plan on 15 May 2023, concerning the prevention of behaviours related to drug and alcohol use that resulted in irresponsible conduct. The offender identified that there were triggers that brought on the behaviour: namely, a culture of drinking excessively with his mates, using alcohol and drugs to mask his problems, and being in a “bad headspace”. He acknowledged that drinking alcohol was a form of escapism and a way of “feeling sorry” for himself. The offender identified self-control strategies to stop the unwanted behaviours including by going home early at parties, talking to his friends and family, and ‘talking sense to himself’. He stated he should continue with the Directions ACT program and seek out counselling to help him resolve his issues.
The Report acknowledged the offenders existing engagement with the Directions ACT AOD Program, which the offender can continue for at least another three to six months. It was recommended the offender should consider ceasing cannabis use and persist with medicinal cannabis for pain, whilst seeking advice from his GP regarding anti-depressant medication to help with sleep and mood stabilising. The Report identified that the offender would benefit from psychological treatment involving psychotherapy concerning his past trauma, acute stress, and current adjustment disorder with associated substance use issues. The offender has already obtained a MHCP and he would be able to seek ongoing treatment from the Report author or another psychologist of his choosing.
The Report noted that the impact of imprisonment would have a detrimental effect on the offender’s mental health, likely increasing the severity of the symptoms he has reported. The Report described the prognosis for the future to be positive considering the offender has almost ceased alcohol use and engaged in AOD rehabilitation to address his past substance use issues. The offender has agreed on a relapse prevention plan, identified above at [65], and is willing to engage in treatment using an existing MHCP. In the Report author’s opinion, the suggested treatment plan for the offender’s condition will require a minimum of 12 months.
The Report recommended that ‘the mitigating factors outlined, along with the offender’s background of trauma, recent bereavement, mental health and substance related conditions outlined, stated remorse, engagement in drug and alcohol rehabilitation, continued full-time employment, and willingness to engage in the recommended treatment program be taken into account on sentencing’. The Report also recommended the offender be considered for community based supervision to facilitate ongoing AOD rehabilitation and psychological treatment for a period of at least 12 months, as stated earlier.
Letter from treating psychologist – Ms Rebecca Elton
The evidence tendered by counsel for the offender included a letter from Ms Rebecca Elton, the offender’s treating psychologist. The offender engaged with Ms Elton for psychological assessment and intervention following a workplace physical injury, attending nine sessions between 17 October 2022 and 24 May 2023. The primary focus of these sessions was managing anxiety, pain, and depressive symptoms to support the offender’s return to work. The offender has since been discharged from the service due to increased capacity and coping strategies.
The letter noted that the offender has remained open and engaged in sessions, acknowledging his dedication and commitment to applying learnt strategies and increasing his insight and reflective skills.
Workers compensation medical certificate
Counsel for the offender also tendered a medical certificate for the offender’s workers compensation claim, completed 10 May 2022. The certificate details the physical injuries suffered by the offender as a result of the workplace incident in April 2022. The certificate also describes the offender having an adjustment disorder, as well as ‘a bit of PTSD from the nature of the incident/injury’. The doctor noted the requirement for psychological intervention to improve mental health, as well as a MHCP.
Support letter – Directions Health Services
A letter authored by an AOD Practitioner at Directions ACT dated 7 June 2023 writes in support of the offender’s engagement with the service. The offender accessed Directions on 8 February 2023 for an assessment and assistance regarding his recreational alcohol use. Since this time, the offender has attended a further five AOD counselling sessions, with the most recent being on 4 May 2023 and an appointment imminent at the time of writing the support letter, on 9 June 2023.
The letter records that, during appointments, the offender has addressed issues regarding his AOD use and the sessions have focused on harm minimisation, positive life skills, and relapse prevention strategies. The author opines that the offender appears to have developed good insight into his situation and the impact of alcohol use in his life and on those around him. The offender expressed a willingness to engage in ongoing counselling to further develop skills and strategies to deal with life circumstances. Directions ACT has indicated they are willing to continue to provide support to the offender.
Support letters – St Vincent De Paul Society; Red Cross
A letter authored by the St Vincent de Paul Society Tuggeranong Centre Manager confirmed the offender has been volunteering with ‘Vinnies Tuggeranong’ since May 2023. The Centre Manager noted the following:
[The offender] has “proven to be reliable, diligently attending his scheduled 3 shifts per week. For the 4-5 hours that [the offender] is here he is reliable and more than willing to carry all tasks that [are] asked of him. I believe this shows [the offender] to be reliable and willing to help [within] the community.
A letter authored by the Store Manager of the Red Cross Shop in Phillip dated 2 June 2023 similarly details the offender’s engagement with volunteer work, and includes the following:
[The offender] applied to volunteer in our store in April 2023 and began his first shift on 27 April 2023. He was trained in processing stock and keeping our shop floor tidy. [The offender] is a fast learner and quickly became a strong part of our [Friday] team. Although [the offender] was eager to volunteer on more days throughout the week, I was only able to offer [the offender] 4 hour shifts on Fridays and some Thursdays as my roster was full on other days. [The offender] gets along well with other volunteers in the store and has been so helpful, always readily accepting new tasks.
Remorse
The prosecution acknowledged that the offender has written letters to the victims of the offending which outline his remorse for his offending conduct. The prosecution agreed, based on the content of these letters, that the offender’s remorse appears to be genuine. A letter authored by the offender dated 6 June 2023 was also tendered and includes the following in relation to remorse:
Although excessive alcohol consumption played a part in my decision making at the time, I take full responsibility for creating this dangerous situation which was lucky not to cost someone their life. It was never my intention for anyone to get hurt, I am not aggressive or violent person. I thought at the time that getting everybody a safe distance away it would the eliminate the risk of injury, this was in very bad judgement call by me and was an extremely dangerous and unnecessary situation to put my friends into, regardless of how far away I got everyone and safe I thought I could make it.
I have had a lot of time to reflect on this, I replay the moments leading up to and the aftermath of the explosion in my head over and over every day. I understand how serious this is and that [CM] and [KG] will carry the physical and psychological scars from this for the rest of their lives, and the impact this has had for everyone involved and the community.
No matter how good of person I try to be and how many good things I do in my life to try and redeem myself, I will always have this on my conscience. I will never forgive myself for putting everybody through this.
…
I took the initiative to take upon volunteering roles to at the Red Cross and [Vinnies] as soon I was medically cleared by my physiotherapist to integrate purpose back into my life and use my spare time to give back to the community. In volunteering have found engaging in conversations and working with unfamiliar people to have a very positive effect on my attitude, anxiety and trust issues. Something I have been struggling with a lot. I hope to be able to keep pursuing this further in a more physical and hands on role when I have fully recovered from my injuries, and I also attended a volunteering expo to find out more ways I can contribute.
I have grown a lot as a person since the incident, learnt some very harsh lessons and built resilience skills. I know that I still have some way to go but I am determined to stay on track.
Counsel for the offender submitted the Court can find the offender to be remorseful by the timing of his pleas, comments made to third parties, and his own letter of remorse. It is also noted in the Report of Mr Watt:
He said that he “will never forget this incident” and he appeared sincerely remorseful for his actions.
Mr Crutchett stated that he had written letters of apology to [KG] and [CM], who were burnt in the incident. He sent the letter he wrote by email for me to read. He made admissions in his letter to [KG] about his actions and how it “impacted the people around me that I care about deeply in such a horrific way”. In his letter to [CM] he stated that “I feel so ashamed about something stupid and reckless that what I have done has left you with physical and psychological scars that you will have for the rest of your life”.
The offender also stated to the author of the PSR that he ‘made a stupid decision when intoxicated’, however, stated he did not blame the alcohol. The offender further stated he threw the aerosol can into the fire when nobody was present, however, acknowledged he created a dangerous situation. Importantly, the offender did not attempt to minimise or justify his offending behaviour, and expressed empathy for the victims.
It is noted that the offender has taken steps to make reparations to the community for his offending, engaging in voluntary community service work with the Red Cross and St Vincent De Paul. The offender could not engage in work such as this earlier due to his pre-existing workplace injury and requirement for medical clearance.
Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence, as is the case here. It is, however, relevant to the weight of the evidence: Butters at [18], Mun v The Queen [2015] NSWCCA 234 at [37], and Van Zwam v The Queen [2017] NSWCCA 127 at [6] and [110].
The prosecution has appropriately conceded the offender’s remorse. Accordingly, I ascribe weight to the remorse expressed.
References
Two references were tendered in support of the offender.
A signed reference under the hand of the offender’s former partner is dated 1 June 2023 and includes the following:
I am aware that [the offender] is pleading guilty and I have read the Statement of [Facts]. I am also a witness of the offending.
[The offender] has been extremely remorseful for his actions. He has been constantly thinking of [KG], [CM] and everyone effected by this, and hoping they are ok. The only thing he cares about is letting [KG] and [CM] heal, in any way they need to. Even if that means losing friends for a while, or possibly forever. [The offender] will always dwell on this event and the harm he has caused. He will think about it more regularly, and feel worse, than most in his situation would.
[The offender] has never hurt anyone, he has made immature decisions in the name of fun, but he is usually smart enough to know if something is too risky, and would never do anything that could hurt someone. [KG], who has known [the offender] for about 14 years, told me last year that “[the offender] is the person you want in an emergency”, because he is quick thinking and will not hesitate to help someone. Which I saw firsthand when he ran past me to get to [CM] while she was on fire to help her (he single-handedly extinguished her). There was also another incident January 2021 where a one of our friends tripped into the fire at [CM]’s house; he jumped out of his seat to pull her out, before anyone else had time to react, she was unharmed. Since the offending, [the offender] is not only wary of fire, he is also not taking any risks, in any other part of his life. It has noticeably changed him as a person.
Prior to the accident, in April 2022, [the offender] was beaten up at work. An unprovoked attack. He is nearly fully healed now, but has not been allowed back to work, to my knowledge, as his knee is still recovering from surgery. At the time of the incident in question he was still pretty shaken up by this attack. Being unable to work in the job he loves was really affecting him.
[The offender] has been engaging with a psychologist since the incident, trying to get into a better frame of mind. He has been going for mental health walks around the lake and trying to be as healthy as his injury will let him be. Since January he has been attending a drug and alcohol counselling. When he has come to visit me, he abstains from drinking, even though I drink alcohol. During the week he has been volunteering for St Vincent De Paul and Red Cross stores to try to give back for his wrongdoing.
Even though [the offender] and I are no longer together, I am in full support of him. He will never be able to undo what he did, even though he wishes he could. But he is making positive life changes, as he never wants anything like this to happen again.
A signed reference under the hand of the offender’s close friend is dated 8 June 2023 and includes the following:
… I have been close friends with [the offender] for 22 years since we met at [high school] in 2001 as students. [The offender] has advised me that he is pleading guilty to the charges. I have read the Statement of Facts in relation to the matter. Further, I was a witness to the incident that occurred.
Since the incident [the offender] and I have spoken regularly about what occurred and he has shown great remorse for his actions during this time. He acknowledges the pain he has caused our friends and their families through his actions. The whole incident and subsequent outcomes play heavily on his mind.
The victims in this matter are some of his closest friends. [The offender] has known [KG] and her husband for around 14 years and has been close friends with them for this time. [The offender] considers both [KG] and [her husband] amongst his closest friends. He has known [CM] and her husband for around 2 to 3 years and had a good, steady friendship with them over this time.
[The offender] consistently mentions that he never intended for this to happen to anyone, let alone his close friends and regrets the impact it has had on their families. If there was any way to change the outcome or take it back [the offender] would do so in a heartbeat.
…
Further to the above, [the offender]’s father’s health had been deteriorating which obviously caused [the offender] great distress and concern on a daily basis. [The offender] and his father were very close, and [the offender] considered him the person to go to for advice and guidance when situations or issues arose in his life. Unfortunately, since the incident [the offender]’s father has passed away, leaving a significant gap in [the offender]’s life.
[The offender] previously had a chronic drinking habit and a history of cannabis use. I note that [the offender] has significantly reduced his alcohol intake since the incident and has removed cannabis use from his life. I have seen firsthand the significant changes that he has made in this area.
Since the incident, [the offender] has undertaken volunteer work with St Vincent De Paul… I understand that he has worked 3 days a week for at least 4 hours per day for the past month.
[The offender] has been undertaking physical therapy for his injuries sustained at the workplace incident on a regular basis with his aim of returning to work as soon as possible. [The offender] is studious in this rehabilitation and undertakes all activities with the seriousness that they warrant and goes above and beyond on many occasions to stay on track and even exceed expectations. [The offender] also undertakes regular walks above the required amount to further his progression wherever possible. I have seen this personally on many occasions.
[The offender] has enrolled in and has undertaken counselling, as well as drug and alcohol programs, to assist him with continuing and maintaining his significant changes in his habits. This has become a sustainable change in his life for the better. These programs were through Directions ACT who offer a range of treatment and support services including specifically for clients impacted by alcohol, drugs, and other addictions.
Further to the counselling and programs mentioned above [the offender] has seen Psychologists both through the insurance company GIO as part of his physical rehabilitation… to assist with his mental rehabilitation from the workplace incident. [The offender] has also sort help from another psychologist on his own and at his own expense…to deal with his mental state after the matter at hand and the outcomes that it has caused all involved.
[The offender] has also reached out to his network of friends to speak about the incident and the regret and immense sadness he feels that this incident has occurred and the [outcomes] that have come from it and the impacts it has had on many people’s lives most specifically [KG] and [CM].
I take these references into account on sentence.
Criminal history
The offender has a limited criminal history in the ACT consisting of two drink driving offences and a drug driving offence in 2006, 2008 and 2018 respectively. In relation to these offences, the offender was convicted and sentenced to a term of imprisonment immediately suspended upon entering into an 18-month GBO, fined and faced licence disqualifications.
The offender also has similar criminal history in NSW. The offender was fined in relation to the traffic offences committed in NSW, sentenced to an 18-month GBO and required to participate in alcohol interlock program. The offender has a single criminal conviction in Queensland for committing a public nuisance in 2012, for which he was fined $300 and no conviction was recorded.
Pleas of guilty
Section 35 of the Sentencing Act provides for the Court to impose a lesser penalty on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. This section applies if the Court considers that there is a real likelihood that it will sentence the offender to imprisonment (s 35(1)(b) of the Sentencing Act).
The offender entered pleas of guilty on 27 February 2023 in the Magistrates Court. The pleas were entered on seventh mention after negotiations between the parties. The prosecution correctly submitted that whilst the pleas were not entered at the earliest possible opportunity, it nonetheless saved the cost and expense of a criminal trial and avoided the need for the victims from having to give evidence. The plea was nevertheless an early plea in the sense of being entered at the Magistrates Court.
There is no set formula or tariff for a plea of guilty, but discounts in the range of 10-25 percent represent common discounts that are given for early pleas of guilty prior to committal to the Supreme Court: Heard v The Queen [2015] ACTCA 6 at [62].
Counsel for the offender submitted that a utilitarian discount of 20 percent would be appropriately afforded to the offender. In the circumstances of this case, a discount of approximately 20 percent is appropriate.
Time in Custody
The offender has spent one day in custody referable to these offences at the time of his arrest on 7 August 2022. I take this into account.
Comparable Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged… to have regard cannot be applied mechanically… given that the factors that must be taken into account are incommensurable, and… in many respects, inconsistent.
The prosecution made both written and oral submissions that, in the ACT, offences of recklessly inflicting grievous bodily harm usually occur in the “alcohol fuelled violence” context (involving “one punch attacks”), or in the prisoner violence context of using materials at hand to cause harm to serious injury. To this end, the prosecution provided summaries of relevant cases, however correctly submitted the cases would be of minimal utility to this Court in the sentencing exercise as the context of the offending in those cases is ‘starkly different to the instant matter’. The following are brief summaries of the cases referred to by the prosecution.
(a)R v O’Brien [2022] ACTSC 86
The offender pleaded guilty to a charge of recklessly inflict grievous bodily harm. Both the offender and victim were at a pub and had drunk to excess. The offender took offence to the victim passing threats and abuse and punched the victim, who was seated and defenceless. The victim fell to the ground and the offender continued to punch him a further seven or eight times resulting in a broken left mandible and several broken teeth, requiring the surgical insertion of four screws and a plate. The offender had compelling and unique subjective factors, including having relocated to Sydney to act as a carer for his sister. The offender was sentenced to a suspended sentence of nine months and two weeks, taking into account 50 days spent in custody.
(b)R v Daniel (No 2) [2021] ACTSC 117
The offending in this matter occurred in the context of tension between two groups of people at a licenced venue over the use of pool tables. The offender turned to the victim, grabbed the front of the victim’s shirt and punched the victim to the left side of his face. He then struck the victim to the throat area. The victim immediately fell backwards to the ground, unconscious. The victim suffered a severe traumatic brain injury and was hospitalised for 75 days. The offender was of prior good character and reported some drug and alcohol use which did not contribute to the offending in a significant way. The offender was sentenced to three years and six months’ imprisonment to be served by way of ICO with an additional condition of 500 hours of community service work.
(c)R v Vardai [2020] ACTSC 297
The assault in this matter occurred during the course of a verbal argument between two people under the influence of drugs and alcohol. The offender threw one punch which knocked the victim to the ground. The victim suffered a number of injuries including a fracture of his left jaw, occipital scalp haematoma and a ‘concussion/middle traumatic brain injury’. The offender had no criminal history and an unremarkable upbringing, without ongoing drug or alcohol use problems. He was sentenced to an ICO for 13 months and 15 days, with a condition he undertake 100 hours of community service work within 12 months.
(d)R v Lacey [2020] ACTSC 241
The offender entered a guilty plea to the charge of causing grievous bodily harm. The victim asked a group of males for a lighter for his cigarette and was teased by a member of the group who held a lighter very close to his skin. The victim pushed the lighter away and another group member slapped the victim in the face, before the offender pushed him from behind. The offender followed the victim and subsequently punched him in the jaw with his left hand. The victim immediately lost consciousness and fell to the ground suffering a moderate to severe traumatic brain injury, a left epidural haematoma, a left temporal subarachnoid haemorrhage, a hairline base skull fracture and a right sided temporo-occipital scalp haematoma. The victim was hospitalised for 25 days and for a period after could not drive, live independently, or work. He lives with the ongoing impacts of an acquired brain injury. The offender was subject to a GBO at the time of offending, was a binge drinker, suffered from medicated anxiety and had a low risk of re-offending. The offender was sentenced to 27 months’ imprisonment to be served by way of ICO with a condition he undertake 240 hours of community service.
(e)R v Chapman [2018] ACTSC 57
The offender was charged with recklessly inflicting grievous bodily harm after striking the victim at a nightclub without warning, causing the victim to stumble backwards and fall to the floor. The victim suffered a broken jaw and was discharged from hospital after 2 days. The offender had a criminal history including violence. The offender was sentenced to 15 months’ imprisonment, wholly suspended upon the offender entering into a GBO for 30 months, including a condition to complete 300 hours of community service work.
(f)R v Myles [2017] ACTSC 194
The offender was intoxicated and attended licensed premises in Civic in the company of his partner and friends. In the early hours of the morning, the offender’s partner greeted the victim, leaning over to give him a quick hug. The offender mistakenly concluded that the victim was his partner’s former boyfriend. He believed his partner and the victim had “cheated on him”. The offender raised his right arm and punched the victim in the lower right jaw with a closed fist. The victim’s jaw fractured in two places requiring surgery. The offender was 23 years of age, did not have a significant criminal history, however had a history of substance abuse and was voluntarily undertaking intervention for alcohol abuse. The offender was sentenced to one year and 10 months’ imprisonment to be served by way of an ICO, with an additional 249 hours of community service work.
(g)R v Sharma [2016] ACTSC 180
The offending occurred in the early hours of the morning in Braddon. The offender was intoxicated and had a verbal argument with two men outside a convenience store. The offender threw a punch at his victim who was standing with his hands in his pockets, connecting with the right side of the victim’s jaw knocking him unconscious and causing him to fall to the ground and hit his head. The victim suffered a fractured lower jaw requiring surgery and hospitalisation. The offender was 20 years old, the offence was deemed out of character– including the fact that he had no criminal antecedents, and displayed remorse. The offender was sentenced to 27 months imprisonment, suspended after 9 months upon entry into a GBO for the remainder of the sentence. The sentence was subject to an unsuccessful appeal for manifest excess.
Counsel for the offender agreed in oral submissions that there are no comparable cases in this matter. Counsel for the offender noted the common thread of unplanned actions and alcohol fuelled conduct in relation to these cases.
I accept the utility of comparable cases is limited and each case turns on its own facts. In assessing the offending, I note this offending is distinguished in the absence of actual physical violence.
Statutory and Other Relevant Considerations
In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to relevant matters above. The sentence a court imposes can never fully encompass the horrific trauma the victims have suffered. No human institution can, without the ability to turn back the clock. As I noted at [2], the law requires I judge the offender in accordance with the law and the principles of sentence I must apply to this case. In doing so, I recognise that no sentence I impose can wholly redress the ongoing trauma experienced by the victims in this case.
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
As stated earlier at [22], the offender’s culpability is assessed by reference to the circumstances of the conduct and associated degree of recklessness, as well as the relative seriousness of the grievous bodily harm sustained by the victims.
The prosecution submitted that recognition of harm to the victims, denunciation of the conduct, and general and specific deterrence would be the primary factors that the court would consider in sentencing the offender. The prosecution submitted that offences involving recklessness require deterrent sentences to send a message to the community that behaviour, albeit not intentional, that demonstrates a disregard for the safety of others, should be sternly sanctioned.
The prosecution submitted, without reference to authority, that rehabilitation is not of great significance to the sentencing exercise, given the reckless nature of the offending. Counsel for the offender correctly submitted that the offender has exhibited insight into his behaviour and a demonstration in and commitment to rehabilitation. It is noted that the offender has engaged with Directions ACT and continued counselling through his ‘Work Cover’ psychologist. The offender has taken steps to moderately reduce his alcohol consumption as evidenced by the references provided to the Court.
Rehabilitation is an important consideration. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
On the evidence before me at sentence, the offender has strong prospects for rehabilitation.
Counsel for the offender submitted that, whilst substance addiction is not a mitigating factor, it is still relevant to sentencing to demonstrate the level of planning, capacity of the offender to exercise judgement and weight to be given to rehabilitation. I take this into account on sentence.
Counsel for the offender submitted that the court can find on the basis of Mr Watt’s Psychological Report of 7 June 2023 outlined at [49]-[68] that the offender suffers from adjustment disorder with mixed anxiety and depressed mood, which makes him less appropriate as a vehicle for general deterrence. On the facts of this case, I am not persuaded of this submission.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, parties agreed that the threshold of s 10 is crossed in relation to this offending, and a term of imprisonment is warranted. However, it was submitted by counsel for the offender that a term of imprisonment could be served by way of a suspended sentence, including community service work as a condition. At the sentence hearing, the prosecution agreed with counsel for the offender that a suspended sentence with community service was in range, given the nature of the offending, the criminal history of the offender, and the remorse the offender has demonstrated. The prosecution noted the community service work the offender has been doing in the interim as increasing the appropriateness of a suspended sentence.
In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 (O’Brien) at [26], citing Cahyadi v R [2007] NSWCCA 41; 168 A Crim R 4 (Cahyadi) at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
The prosecution correctly submitted it is appropriate for the Court to consider the question of concurrency in light of the offences occurring essentially as a single course of conduct (see O’Brien at [26]). There will be both concurrency and cumulation.
Sentence
It must be recognised by the Court that the offence committed against the victims has had a serious and significant impact. The impact of this offending on each victim has been traumatic both physically and psychologically. Not only have the victims suffered in relation to the bodily injuries sustained, they have also each required, to varying degrees, ongoing and costly medical treatment. Each victim is left with the physical daily reminders of the offence, manifested not only in their memories, but visible on their bodies. Both the short and long term consequences of being a victim of these offences must be acknowledged; and I do so. As both victims noted in their respective VISs, they refer to two versions of themselves: the version that existed prior to the injury, and the version that exists thereafter.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the offender.
The appropriate sentence for the offence of recklessly inflict grievous bodily harm (CC2022/11340) is two years and five months’ imprisonment, reduced to two years on account of the plea of guilty. The sentence will take into account the 1 day spent in custody.
The appropriate sentence for the offence of recklessly inflict grievous bodily harm (CC2022/11341) is 22 months’ imprisonment, reduced to 18 months on account of the plea of guilty.
These sentences will be suspended from today, 21 July 2023 and I will impose a GBO for a period of two years and six months. It must be remembered that although the imposition of a suspended sentence involves a degree of leniency, it is not a lenient sentence, as was noted recently by the Victorian Court of Appeal in Henry v The King [2023] VSCA 100 at [105]:
When a judge is considering the imposition of a suspended sentence, various factors often will vie for paramountcy in the exercise of the sentencing discretion, and often factors will point in different directions. It has been recognised, however, that a suspended sentence can promote reformation, and may be imposed in the community’s interest to prevent reoffending… Despite the fact that service of imprisonment is conditionally suspended, it may also be regarded as a significant punishment… Moreover, even if a sentence was wholly suspended it still plays a role in general deterrence.
In this case, the suspension of the sentence is appropriate, because it is ‘productive of reformation’: R v Davey (1980) 50 FLR 57. A suspended sentence of imprisonment is not an unconditional release, and in this case the offender will be subject to conditions intended to bring about further opportunities for rehabilitation and recovery from significant grief, substance abuse and mental health challenges; as well as allow the offender to continue to positively contribute through community service work as he has done to date.
Orders
I make the following orders:
(1)I record convictions in relation to the offences.
(2)In respect of the offence of recklessly inflict grievous bodily harm (CC2022/11340), the offender is sentenced to 2 years’ imprisonment (reduced from 2 years and 5 months for the plea of guilty) to commence 21 July 2023 and expire 19 July 2025 (taking into account the 1 day spent in custody).
(3)In respect of the offence of recklessly inflict grievous bodily harm (CC2022/11341), the offender is sentenced to 18 months’ imprisonment (reduced from 22 months for the plea of guilty) to commence on 21 July 2024 and expire 20 January 2026.
(4)I suspend the sentence under s 12 of the Crimes (Sentencing) Act 2005 (ACT) from 21 July 2023 until the end of the balance of the term, on 20 January 2026.
(5)I impose a Good Behaviour Order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) for a period of 2 years and 6 months, commencing on 21 July 2023 and expiring 20 January 2026 with the following additional conditions:
(a)That the offender continue his existing engagement with Directions ACT for the purposes of alcohol and drug rehabilitation;
(b)That the offender continue to access psychological treatment; and
(c)
That the offender undertake 100 hours of community service work in 18 months commencing 21 July 2023.
I certify that the preceding one-hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
Associate:
Date: 21 July 2023
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