Director of Public Prosecutions v Dritsas
[2023] ACTSC 308
•31 October 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Dritsas |
Citation: | [2023] ACTSC 308 |
Hearing Dates: | 16, 27 October 2023 |
Decision Date: | 31 October 2023 |
Before: | Taylor J |
Decision: | See [75]-[78]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm by way of joint commission – guilty plea – overwhelming prosecution case – serious injuries – committed while on SSO – GBO cancelled and SSO imposed – need for parity – criminal history with some violent offending – good prospects of rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT), s 20 Criminal Code 2002 (ACT), s 45A Crimes (Sentence Administration) Act2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 12, 35(4), 37, 65 Magistrates Court Act 1930 (ACT), s 90A |
Cases Cited: | Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Guy v Anderson [2013] ACTSC 5 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Laipato v The Queen [2020] ACTCA 35 Lowe v the Queen [1984] HCA 46; 154 CLR 606 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Bandy [2018] ACTSC 261 R v Barron [2020] ACTSC 281 R v BC [2020] ACTSC 308 R v Carmody [2016] ACTSC 382 R v Hallam [2021] ACTSC 141 R v Kelly (No 2) [2021] ACTSC 253 R v Kepaoa [2017] ACTSC 414 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kinsela [2021] ACTSC 265 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Pham [2015] HCA 39; 256 CLR 550 R v Snowden [2022] ACTSC 186 R v Torbert [2015] ACTSC 331 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 Saga v Reid [2010] ACTSC 59 Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 Taylor v The Queen [2014] ACTCA 9 The Queen v PM (No 2) [2015] ACTSC 358 |
Parties: | Director of Public Prosecutions ( Crown) George Dritsas ( Offender) |
Representation: | Counsel S Janackovic ( DPP) J McGuire ( Offender) |
| Solicitors ACT Director of Public Prosecutions Canberra Criminal Lawyers ( Offender) | |
File Numbers: | SCC 149 of 2023 |
TAYLOR J:
Introduction
1․The offender, Mr George Dritsas, was committed to this court for sentence by the ACT Magistrates Court in relation to one offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act) by way of joint commission: s 45A Criminal Code 2002 (ACT) (Criminal Code). The offending occurred some years ago. The victim suffered serious injuries as a result of the violence inflicted upon him in public. Mr Dritsas left the ACT shortly after the offence was committed only to return this year and bring himself to the attention of police with the intention of resolving this outstanding matter. In the meantime, the co-offender Mr Kinsela was sentenced for his part in the offending: R v Kinsela [2021] ACTSC 265 (Kinsela). As will become clear, Mr Dritsas committed this offence while subject to two suspended sentence orders (SSOs) imposed upon him in the ACT Magistrates Court in April 2019.
2․The maximum penalty for this offence is 13 years’ imprisonment.
3․The offending occurred in 2020. A warrant was issued for the offender’s arrest on 11 September 2020. As mentioned above, Mr Dritsas left Canberra shortly after the offending. He returned to the ACT and self-reported to police in April this year. He was charged on 6 April 2023 and was granted bail. Mr Dritsas pled guilty to the offence in the Magistrates Court, on 19 June 2023, after negotiations between the parties saw other (more serious) charges related to the incident, withdrawn. The matter was committed to the ACT Supreme Court for sentence pursuant to s 90A of the Magistrates Court Act 1930 (ACT).
4․Mr Dritsas’ bail was revoked by the Court on 16 October 2023. Prior to that occurring he had not spent any time in custody in relation to this offence.
Facts
5․The co-offender, Mr Kinsela, and the victim, Mr Pratt, had known each other since 2008. For a period in 2020 the victim resided in Mr Kinsela’s home. Mr Kinsela’s partner, his 16-year-old daughter and the offender also lived there at the time. The victim moved out of the home in July or August 2020 and rented a room from Ms Stonham. Mr Kinsela provided a rental reference for the victim via his phone number, ending in 482, to Ms Stonham.
6․On or around 29 August 2020 the victim broke into Mr Kinsela’s home at around 1:00-2:00am and stole 280 grams of cannabis and 1 litre of cannabis-infused vegetable glycerine. CCTV cameras on the property captured this incident and Mr Kinsela consequently became aware of it.
7․Over the next few days Mr Kinsela and the offender sent several threatening messages to the victim. On 1 September 2020 Mr Kinsela called Ms Stonham. He identified himself as Jamie and stated that he had provided the rental reference for the victim. He told Ms Stonham that the victim was a dangerous man, that he had broken into his home and stolen $5,000 and that this was captured on CCTV footage.
8․On 3 September 2020, the offender and Mr Kinsela attended the victim’s residence. The offender spoke to Ms Stonham while Mr Kinsela was in the car. Ms Stonham told them to contact the police, but they said they would deal with it in their own way. They remained parked outside the residence for some hours waiting for the victim.
9․Ms Stonham told the victim he was no longer welcome to reside at her address. He packed up his belongings and set up a swag to sleep in an oval in Latham, ACT.
10․On 4 September 2020, the victim saw Mr Kinsela and the offender driving near the oval. Mr Kinsela got out of the ute and gave chase to the victim in the direction of the Latham Shopping Hub. The victim arrived at the shops at 9:20am. The offender drove the ute to the shops, got out of the vehicle and began chasing the victim through the shopping hub.
11․The victim ran into the ‘Latham Turkish Food Bar’ and asked the shop owner to call the Police. Shortly after, the offender ran into the store and struck the victim in the face, knocking him to the ground. He then grabbed him by the left foot and dragged him towards the door. The victim tried to resist and the offender kicked him in the ribs and stomped on his upper chest or head. He then punched his shoulder and head area and stomped on the victim’s leg. The shop owner told the offender and the victim to leave the store; she then exited. The offender took the victim’s shoes and left. The victim crawled behind the shop counter.
12․Outside the store, the shop owner saw Mr Kinsela approaching and asked him to call the police. Mr Kinsela refused and said that the victim had snuck into his house while his 16 year-old daughter was asleep and stolen $5,000 from him. The shop owner told him “Well just get him out of my shop. I don’t want any of this in my shop.”
13․The offender and Mr Kinsela then entered the store and found the victim behind the counter. Mr Kinsela kicked the victim while he was on the ground and dragged him by his shirt and hair out of the store. The victim was resisting and pleading with them not to harm him. Outside the store, Mr Kinsela struck the victim’s head with his fist while still holding him by his shirt. The victim’s phone fell out onto the ground and Mr Kinsela pocketed it. While Mr Kinsela continued to hold the victim by his shirt, the offender slapped him, stomped on his right ankle five times and kicked the victim in the face. During this time, both the offender and Mr Kinsela were yelling at the victim about robbing them, asking where his wallet was and threatening him. This was heard by the owner of the Latham Turkish Food Bar, and two other nearby witnesses, Mr Edmonson and Ms Frazer. Ms Frazer called the police as she was concerned by what she was hearing. She narrated her observations to the operator on the call.
14․Mr Kinsela dragged the victim by his shirt towards the ute. The victim was told to get in the back. He believed he would be driven somewhere and they would cause further harm to him. Both the offender and Mr Kinsela attempted to push the victim into the tray of the ute and the victim resisted. The offender told the victim not to get blood on the car and said, “the more mess you make, the more we’re going to hurt you”. The victim said he was sorry and would repay the money. Mr Kinsela said there was nothing that could be repaid anymore.
15․Ms Frazer came out of her house and yelled “Stop what you are doing! What are you doing? What is going on I’ve got children here”. Mr Kinsela replied that the victim had robbed him while he was asleep. Ms Frazer responded “Guys, this is really scary for us okay, I’ve got an autistic child, please”. The offender and Mr Kinsela stopped what they were doing. The victim went over to Ms Frazer. Mr Kinsela yelled for the victim to “get out of Canberra”. The offender then yelled to Ms Frazer that “he snuck into our house and stole $5,000 while we were sleeping with a young girl in the house”. Ms Frazer said, “I don’t want you guys to get in trouble either, okay”. Mr Kinsela again yelled at the victim to “get out of Canberra”.
16․The offender and Mr Kinsela drove away in the ute. As they did so, Ms Frazer reported the vehicle registration of ‘YNA44A’ to the triple-zero operator. Police arrived shortly afterwards and spoke to the victim who identified Mr Kinsela as one of the people who assaulted him, and that this was due to him stealing his cannabis. ACT Ambulance Services arrived at the location and began transporting the victim to Calvary Hospital. While enroute to the hospital the victim’s lung collapsed which resulted in him being rushed to Canberra Hospital in critical condition. He was triaged as a Category Two patient with a potentially life-threatening condition requiring time-critical treatment.
17․Dr Virginia French provided a Forensic Medical Officer Report which finely detailed the victim’s injuries. They were, in summary:
(a)two rib fractures, described by Dr French as “minimally displaced fractures of the 8th and 9th ribs”;
(b)large right sided pneumothorax (collapsed right lung);
(c)a fractured right ankle which required open reduction and fixation under general anaesthetic, with screws being inserted to secure the unstable bone fragment. Dr French opined the victim would sustain permanent scarring and was at risk of further complications such as osteoarthritis and further surgeries from this;
(d)subcutaneous emphysema, which Dr French explained as the leakage of air into soft tissues, and although the precise cause could not be determined it was likely linked to blunt force trauma;
(e)pneumomediastinum, which Dr French explained as the presence of air within the central chest, likely caused by the collapse of the lung;
(f)a small subpleural haematoma at site of the rib fracture; and
(g)various abrasions, bruises and a laceration to the left index finger, which Dr French thought would result in permanent scarring.
18․Substantial medical intervention was required; in particular, immediate life-saving surgical intervention was needed for the collapsed lung which Dr French concluded would result in permanent scarring. The victim remained in the Intensive Care Unit for four days and was discharged with an orthopaedic boot, six weeks of aspirin for blood clot prevention and further x-ray chest imaging and orthopaedic review.
19․Dr French concluded that the victim had suffered potentially life-threatening injuries which required urgent medical intervention, and that some of these injuries would have lasting effects such as scarring and potential complications.
20․Police spoke with the victim twice while he was at the Canberra Hospital. He identified Mr Kinsela and “George” (the offender) as the people who attacked him and provided an account of the days leading up to the incident as well as the incident itself. He did not provide a formal statement.
Police investigations
21․Police spoke to residents who lived near Latham Shops and had heard yelling. They also obtained the triple-zero call and CCTV footage from the Latham Turkish Food Bar which captured the assault. ‘YNA44A’ was confirmed to be registered to the offender and it was also confirmed that the phone number ending in 482 was registered to Mr Kinsela.
22․On 5 September 2020 police executed a search warrant at Mr Kinsela’s residence. He was placed under arrest at this time. Police obtained CCTV footage from the house which depicted the following from 4 September 2020:
(a)a male consistent with the offender’s appearance is seen leaving the residence wearing blue shoes with white soles, black tracksuit pants with white text down the leg, a red chequered shirt and a dark coloured cap. He enters a silver Holden Commodore Ute which then drives away from the residence.
(b)a male consistent with Mr Kinsela’s appearance is seen walking on the driveway wearing a navy t-shirt with white words on it, black tracksuit pants with two white stripes running up the leg and tan coloured boots. He is later seen walking with a dog down the driveway wearing a navy t-shirt with what appears to be the Ford logo and other words written across it in white and a dark cap.
Considerations
Nature and circumstances of the offending
23․The offending occurred in the context of an agreement with the co-offender to commit the offence.
24․A consideration of the nature and circumstances of the offence requires an assessment of the objective seriousness of the conduct. The maximum penalty provided for by the legislature provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. The Court must identify and consider those factors that bear upon the objective seriousness of the offence. It has been observed that references to low, mid or high range objective seriousness may generally be unhelpful in this jurisdiction and it is preferable to identify the factors that inform the character of the objective seriousness of the conduct: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156].
25․The objective seriousness of this offence requires an assessment of the conduct engaged in by the offender (including the degree of recklessness) as well as an assessment of the nature of the grievous bodily harm suffered by the victim: R v Bandy [2018] ACTSC 261 (‘Bandy’) at [22].
26․In addition to the description of the offending contained in the agreed statement of facts the prosecution tendered CCTV footage which captures a significant portion of the offending. The footage was played during the course of the sentencing proceedings and in particular demonstrates the effort the offenders went to in order to physically drag the victim from the shop he entered. The footage also demonstrates the brazen nature of the attack – it was in broad daylight and at least initially, occurred in a shop where the operator of the business was in clear view. The offenders appear unperturbed by these factors and persist with the assault.
27․Informed by the agreed statement of facts and the opportunity to observe the CCTV footage I consider the offence to be an objectively serious example of the offence and note the following features:
(a)the offending occurred in company, a factor that not only facilitated the physical elements of the conduct, but enhanced the capacity to intimidate the victim and instil fear in him;
(b)the offending involved some planning and followed the sending of the threatening messages to the victim, contacting the victim’s landlord and then speaking with her at her home where the victim was renting a room. The offender and co-offender then remained at her home for some hours waiting for the victim;
(c)the assault was protracted and involved participation by both offenders in the physical acts including punching, slapping, kicking (including directly in the face), stomping on and dragging the offender;
(d)the offender played a central role in the commission of the offence by the physical acts he engaged in and by assisting the co-offender to dominate and intimidate the victim, including by making threats to obtain the victims’ compliance with their attempts to drag the victim into the vehicle;
(e)the offending occurred in public and continued despite pleas from witnesses and from the victim to stop and despite the victim’s obvious physical injuries. The offending stopped only when a distressed member of the public intervened;
(f)the offending was motivated by revenge, the victim having earlier broken in the home of co-offender Kinsela and stolen cannabis and cannabis infused glycerine (containing THC); and
(g)the numerous grievous injuries sustained by the victim were serious and were life-threatening. The victim would have suffered pain, discomfort and distress. The material reveals the victim to have scarring arising from the injuries he suffered.
28․There is no victim impact statement (VIS) as part of these proceedings. It is clear, even without a direct statement from the victim, that the offending resulted in pain and suffering. As the prosecution pointed out, upon admission to hospital the victim complained of pain and was described as being in “severe distress, fighting to breathe” and was given “intravenous opiate pain relief for severe pain”. The CCTV footage provides some insight into the fear the conduct instilled in the victim who can be observed cowering and pleading with the offenders. The offenders were required to drag him along the floor of the shop in order to move him outside. By their conduct, it being in broad daylight and with witnesses around, the offenders revealed to victim their determination to assault him. That said, I make it clear that I have kept firmly in mind Mr Dritsas is to be sentenced for the reckless infliction of harm as distinct from intentional infliction of harm which is a more objectively serious offence. In my view, the involvement of Mr Dritsas in the actual violence inflicted was more significant than that of the co-offender, Mr Kinsela.
Guilty Plea
29․The offender entered a plea of guilty at a very early opportunity prior to the matters being committed to this court for sentence. The utilitarian value of the plea is significant and ordinarily would see the application of a 25 percent discount. Section 35(4) of the Crimes (Sentencing) Act2005 (ACT) (Crimes (Sentencing Act) prohibits the court from making any “significant” reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution case for the offence was “overwhelmingly strong”.
30․A consideration of this issue “calls for a practical assessment of the reality of the situation” and an overwhelming case means “so great as to render opposition useless”: The Queen v Newby [2022] ACTCA 20 at [31]
31․There are a number of factors in support of a characterisation of this case as “overwhelming”. Firstly, the CCTV footage is very clear allowing for close observation of the separate co-offenders for an assessment to be made of their appearance and identity. The footage captures much of the violent conduct, in particular that engaged in by Mr Dritsas and demonstrates no attempt by the victim to engage in any kind of fight or physical contact that Mr Dritsas could be said to be defending himself against. Indeed the victim appears quite desperate not to be taken from the shop so much so that the offenders had to drag him out. The victim named the offender and co-offender in the context of a prior relationship where they all shared a house. The numberplate of the offender’s vehicle was recorded. There were eyewitnesses to the assault. The co-offender indicated during the course of his sentence that he was willing to give evidence in any proceedings against Mr Dritsas and the agreed statement of facts to which he entered a plea of guilty named Mr Dritsas as his co-offender.
32․The combination of those factors in my view leads to a conclusion that “an acquittal [would be] realistically unlikely”: Newby at [31]. In R v Snowden [2022] ACTSC 186, Mossop J suggested at [48] that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), will be in the order of 5 percent: see also DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142. As Mossop J recognised in Snowden a determination of what is a significant reduction may “vary from case to case”: at [47]. In this case the plea even with the overwhelming case nonetheless saved significant time and cost to the court particularly in circumstances where years have elapsed. While the circumstances of delay were created by Mr Dritsas, his plea of guilty did spare the victim from having to come to court, years after the incident and relive it through the giving of evidence including being subject to cross-examination. This is in circumstances where the victim did not ever provide police with a formal statement.
33․This is a matter where I am satisfied that there is an “overwhelming” prosecution case and accordingly, s 35(4) applies. This disentitles Mr Dritsas to any “significant” reduction. I intend to express the discount I will apply as a period of time that I will deduct from the head sentence and not as a percentage. I am satisfied that the period I nominate will observe the prohibition in s 35(4).
Criminal History
34․Mr Dritsas was subject to two SSOs when this offence was committed. Those offences relate to a Family Violence Order (FVO) that was in place naming him as the respondent in April 2019. The victim of those offences was his mother.
35․Mr Dritsas has convictions for drug related offending in 2015 (trafficking in a controlled drug other than cannabis; a suspended period of imprisonment was imposed with a community service work condition), violent offending in 2014 (two common assaults; periods of imprisonment were imposed and partially suspended on the condition of good behaviour with supervision) and 2013 (assault occasioning actual bodily harm; a good behaviour order was imposed including a community service work condition). Mr Dritsas’ criminal history also includes convictions for offences of violence dating back to 1999 and 1995.
Subjective Circumstances
36․A Pre-Sentence Report (PSR) was prepared on 5 September 2023. The PSR records that Mr Dritsas is currently 54 years old. He was 51 years of age at the time of the offending. He is from Canberra and has a fairly extensive criminal history, as I’ve already mentioned, containing some violent offending. He left Canberra after the offending to avoid being arrested. He returned in April 2023 when he reported to police himself to deal with any outstanding matters. He currently resides with a friend in Canberra. Mr Dritsas described being “on the run” for so long that he lost contact with many of his friends.
37․He has limited education, having left school in Year Nine. He has current employment as a painter. He reported heavy alcohol use from age 14 to 22 but currently abstains from alcohol. However, he has a history of illicit substance use including cannabis, heroin and methamphetamines. He previously received methadone treatment for 20 years but this ceased 5 years ago. He reported that he not used heroin for over 10 years. His last use of methamphetamines was in 2018. He was frank about his current, regular use of cannabis on the weekends spending about $50 per week on the habit. He said he believed he could cease this without difficulty if needed.
38․He has been diagnosed with depression and was briefly hospitalised for suicidal ideation earlier this year in the context of acute stressors. Information provided for previous reports indicated that Mr Dritsas had been diagnosed with Major Depressive Disorder and anti-social personality disorder, with intermittent engagement with mental health services since 2012, usually during periods where he was experiencing crisis.
39․Mr Dritsas disclosed to the author that he was injured in a serious accident in 2019 where he was hit by a cyclist and spent some weeks in hospital arising from injuries he sustained. He reported ongoing discomfort though was otherwise in good physical health.
40․Mr Dritsas attempted to justify his offending saying he was motivated to prove his own innocence for the theft perpetrated by the victim. He told the author of the PSR that “things got out of control” and he did not intend for the victim to be so badly injured. He also accepted he was in the position he was in because of his own actions and that a man of his age should not behave in such a manner.
41․The author expressed the view that Mr Dritsas would benefit from consistent mental health treatment and that he would be suitable for a medium level of supervision with ACT Corrective Services. He was assessed as suitable for a Community Service work condition and for an Intensive Correction Order (ICO).
42․Mr Nick Bakavgas provided a reference for Mr Dritsas and was in court to support him, along with Mr Dritsas’ mother and partner of some months. Mr Bakavgas has been friends with Mr Dritsas for 39 years and appears well aware of the difficulties Mr Dritsas has experienced with drug use and with his mental health. Mr Bakavgas has assisted Mr Dritsas recently to register his vehicle and confirms that he has been working. He refers to Mr Dritsas’ acceptance that he will spend time in prison arising from the charge and confirms his ongoing support for Mr Dritsas upon his release. Mr Bakavgas writes, “George has people around him that don’t do drugs, that have families and that want to support him and I’m one of them. I have a small circle of good friends, and I’ve cut out most people who cause problems or do drugs from my life. George wants to be the same.”
43․Mr Wael Aoun gave evidence that he has recently employed Mr Dritsas. He spoke highly of Mr Dritsas’ work ethic and said he trusted him implicitly. He was generally aware of the nature of the charge before the court but added that he had not enquired too much because he considered it to be the business of Mr Dritsas. Mr Aoun was unequivocal that should Mr Dritsas seek work with him in the future, even if Mr Dritsas is in prison for some years, he would “absolutely” employ him if his business is in a position to take him on.
Remorse and rehabilitation
44․The offender maintained some justification for the offending citing the theft committed by the victim. He also suggested that he himself had been blamed for the theft and he was motivated by a desire for an admission from the victim. This is somewhat difficult to reconcile with the reference in the agreed statement of facts to CCTV capturing the victim breaking into the co-offender’s residence.
45․The offender demonstrated some remorse commenting to the author of the PSR, as I have already noted, that “things got out of control”. Mr Dritsas ultimately accepted responsibility for his actions, reflecting some awareness that his age should have put him a position to know much better.
46․Since the offence was committed the offender has not committed any further offences, he has complied with bail conditions imposed upon him and co-operated with ACT Corrective Services for the purposes of the preparation of the PSR. There is no evidence to suggest that he has any current issues with drug use or alcohol abuse. He is not currently experiencing any acute mental health issues. He has a supportive relationship, and his partner has indicated her ongoing support for him even if their romantic relationship does not survive a sentence of imprisonment. It is her intention to visit him regardless of the status of their relationship to continue her support and their friendship.
47․While Mr Dritsas’ criminal history does demonstrate a capacity for anti-social and violent conduct as well as conduct in breach of court orders, he does not currently appear to have any particularly alarming or concerning criminogenic risk factors. The prosecution properly highlighted some of the instability that has attended to Mr Dritsas’ life over the last few years, in particular in relation to his accommodation. This is evident from the PSR. That said, the prosecution also fairly conceded that since the offending occurred, even with that factor of instability, Mr Dritsas has not re-offended. While Mr Dritsas deliberately avoided responsibility for the offending for some time, he ultimately drew himself to police attention. He has complied with bail conditions including returning to the ACT when given the opportunity to visit his very ill sister in Melbourne. Taking all of those matters in to account I consider that Mr Dritsas does have good prospects for rehabilitation. It is often cited, no doubt because it is an astute observation from former Chief Justice French of the High Court but also, respectfully, because it just makes good common sense, that rehabilitation, if it can be achieved, is the most durable guarantor of community safety and is clearly in the public interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].
Conditional liberty and breach of suspended sentence orders
48․The offender was subject to two SSOs when he committed the present offence. These were imposed on the 27 August 2019 for family violence offending committed in relation to his mother in April 2019. For the first charge of contravening an FVO (CC2019/8197) he was sentenced to 10 months’ imprisonment suspended immediately upon entering a Good Behaviour Order (GBO) for 24 months, and for the second charge of contravening an FVO (CC2019/4943) he was sentenced to eight months suspended after serving three months and 30 days and entering a GBO. There was no order that the periods of imprisonment imposed were consecutive and “like any other sentence of imprisonment, unless the original sentencing court otherwise orders, a suspended sentence starts on the day when it is imposed”: see Barron v Laverty [2019] ACTSC 198 at [62]. They are therefore concurrent periods of imprisonment.
49․Section 110 of the Crimes (Sentence Administration) Act2005 (ACT) dictates that, upon being satisfied that a SSO has been breached, the Court must cancel the GBO and either:
(a)impose the suspended sentence imposed for the offence; or
(b)re-sentence the offender for the offence.
50․If a court determines to deal with a breach pursuant to s 110(2)(a) “there is no scope to alter the original sentence”: see Barron at [65]. The prosecution submitted that the GBOs ought to be cancelled and the suspended sentences imposed, as the offending against Mr Pratt “represented an escalation in the offender’s criminal behaviour and occurred halfway through the good behaviour orders”. There was no submission to the contrary. The sentence to be imposed, if I determine to deal with the matter under s 110(2)(a), is 10 months’ imprisonment and four months’ imprisonment, imposed concurrently. Mr Dritsas did spend four months in full-time custody before his release on the SSO. That period was attributed to the eight month period.
51․In this jurisdiction there is no presumption in favour of the imposition of a sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. It is recognised however that a failure of courts to act where there has been a clear breach of the bond by which the offender avoided being subjected to fulltime imprisonment is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23] cited in The Queen v PM (No 2) [2015] ACTSC 358 at [19] and Saga v Reid [2010] ACTSC 59 at [99]-[101]. A betrayal of the opportunity for rehabilitation through probation or parole or provisional release on bail is regarded very seriously: R v Tran [1999] NSWCCA 109 at [15].
52․In R v Kelly (No 2) [2021] ACTSC 253 at [15], the factors relevant to the consideration of whether to impose the suspended sentence or re-sentence were identified as follows (citations omitted):
(a) the proportion of the Good Behaviour Order served before the breach occurred:
(b) any rehabilitation attained prior to the breaching conduct:
(c) the prospects of further rehabilitation:
(d) the relative seriousness of the offence or offences causing the breach and whether the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending;
(e) the nature of the offence or offences which breached the order, including whether it is of similar conduct:
(f) the actual facts of the matter for which the offender was first sentenced:
(g) whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour:
(h) whether the offender has received any warnings with respect to the breaches:
(i) the level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach:
(j) the nature of judicial and community resources previously devoted to the offender.
53․The facts for the charges that saw suspended sentences imposed were part of the prosecution material in these proceedings. In summary, the contravention of the FVO in both instances involved an FVO naming his mother as a protected person. In contravention of the order, Mr Dritsas attended her home and chained and padlocked her side gate (CC2019/8197). Ten days later Mr Dritsas returned and became angry that the chain and padlock had been removed. He swore at and threatened his mother (CC2019/4943).
54․The offence that Mr Dritsas now stands to be sentenced for occurred approximately 17 months after the imposition of the 24 month GBO. There is no indication that he failed to accept the supervision also ordered as part of the SSO. The breaching offence is more serious offending and it could not be said that the imposition of the suspended sentence would be disproportionate. The breaching conduct revealed, at least when it occurred, an intention to disregard the obligation to be of good behaviour though has not been accompanied by any other offending such that Mr Dritsas could be characterised as abandoning any intention to be of good behaviour. I do not consider Mr Dritsas to have received an allocation of resources outside of the ordinary. In my view, a consideration of those matters favours the imposition of the outstanding period of imprisonment. No submission was advanced to the contrary. I will proceed under s 110(2)(a) and impose the suspended sentences.
Current sentencing practice
55․Sentencing statistics and comparable sentences illustrate, not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]. The provision of comparative cases is not to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence but rather to ensure consistency in the application of relevant principles. The range demonstrated by past sentences does not, “fix the boundaries within which future judges must, or even ought, to sentence”: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54].
56․In Bandy, Loukas-Karlsson J identifies at [78] by reference to R v Kepaoa [2017] ACTSC 414 and at [79]-[99], describes in some detail a number of sentencing outcomes from this Court in relation to the infliction of grievous bodily harm. I have had regard to those cases. A number of them involved what are typically described as “one punch” assaults and are not factually analogous to the facts of this matter. Her Honour observed at [100]:
Having regard to the differing objective circumstances of those cases and the subjective circumstances of the offender, no clear pattern emerges from those sentences other than that the offence is treated very seriously having regard to the necessarily grave consequences of the offender’s actions.
57․In Kinsela, Murrell CJ referred to two other “somewhat comparable” cases R v Torbert [2015] ACTSC 331 (Tobert) and R v Hallam [2021] ACTSC 141 (Hallam) at [65], saying at [66]:
In Torbert, the offender harboured a sense of grievance against the victim, whom he believed had stolen property. He encountered the victim at a time when he had a machete in his possession. He used the weapon to strike the victim, causing significant injuries. The most serious injury was a severing of the Achilles tendon. The offender was 36 years old. Had a long history of substance abuse and suffered from paranoid schizophrenia. The sentencing judge was satisfied that the offender’s mental illness lessened his moral culpability. The offender had a substantial record, but for relatively minor matters. He was sentenced to five years and three months’ imprisonment (reduced from seven years for the plea of guilty).
58․In Torbert, the offender was found to have experienced a disadvantaged background “marred by violence, alcoholism and mental illness” a factor considered relevant to his moral culpability at [43] and was found to be experiencing a psychotic episode at the time the offence was perpetrated at [45]. The offender was determined to have “average” prospects for rehabilitation at [63].
59․In Kinsela at [69] Murrell CJ noted “that the ACT Sentencing Database indicates that, of 10 offenders sentenced for offences of recklessly inflicting grievous bodily harm between July 2012 and November 2020, five received a sentence of full-time imprisonment. The sentences ranged from 18 months to five years imprisonment”.
60․In Hallam, the offender approached the victim because he believed that the victim had assaulted his girlfriend. He discharged a shotgun, wounding the victim in the chest and causing other injuries. The offender was determined to bear high moral culpability for the offending: at [28]. The offender was 33 years old and had no record for violence as an adult. The offender was assessed as being at a medium to low risk of general reoffending: at [37]. He was sentenced to four years’ imprisonment (reduced by 20 percent from five years for the plea of guilty) and received concurrent sentences for firearms offences.
61․R v Barron [2020] ACTSC 281 involved the more serious offence of intentionally inflicting grievous bodily harm which carries a maximum penalty of 20 years imprisonment. The offender was 35 years of age with a “significant” criminal history and on parole at the time the offending occurred. The conduct involved a planned attack, in company, seeking retribution against the victim. The offender used a weapon, being a metal pole. The injuries were extensive, and the victim sustained lasting scarring to his scalp and head and reduced movement in the smallest finger on his right hand. After the application of a 25% discount for the plea of guilty the sentence imposed was 3 years and 9 months with a non-parole period of 26 months.
Parity
62․There being a co-offender I must consider the principle of parity, described as embodying the concept of “equality before the law”: see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28].
63․In Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 at [56] the Court of Appeal articulated the principle in this way:
The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe):
“[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”.
As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
64․The co-offender was sentenced in this Court on 15 October 2021 in relation to this offence and other offences: see Kinsela. He pleaded guilty to the offences after a Criminal Case Conference. In addition, he participated in an interview with police and indicated he would be prepared to give evidence at any future trial involving the offender. He was afforded a 20 percent discount in light of those factors. The offender was 50 years of age at the time he was sentenced. He had two significant entries on his criminal history for violent offending in 1989 and 2001.
65․He committed the offence while on a good behaviour order for the offence of driving with a prescribed drug in his oral fluid. He was in a stable relationship of some 25 years. He had a history of stable employment and engaged in longstanding, habitual use of cannabis. Chief Justice Murrell considered that the offender minimised his culpability to the author of the PSR at [57]. Noting the 19-year gap between the 2001 and the instant offence, her Honour considered the offender’s prospect of re-offending to be low at [59] and that his prospects for rehabilitation to be good at [71]. The offender acknowledged a need to address an anger management issue. He was on remand at the time of sentence and it was the first occasion he had ever been imprisoned on a full time basis in his life.
66․I have noted those features of the co-offender. Mr Dritsas played a more significant role in the actual infliction of violence and has a more recent history of violent offending behaviour. The sentence I impose should recognise the more significant role of Mr Dritsas though ultimately in my view there will not be a very significant difference in the outcome as between the co-offenders. Of course, Mr Dritsas’ overall sentence will differ because of the need to deal with the suspended periods of imprisonment.
Sentence
67․Respectfully, I adopt the characterisation of Murrell CJ in Kinsela when her Honour described the offending and identified two of the prominent sentencing considerations at [70]:
In relation to Count 1 [recklessly inflicting grievous bodily harm by way of joint commission], general deterrence is a prominent sentencing purpose. The offence involved a prolonged violent attack in a public place for the purpose of retribution. It was not an impulsive offence. The fact that the offenders had decided to take the law into their own hands speaks to the sentencing purposes of general deterrence and denunciation.
68․Mr Dritsas is sentenced against the background of the objects of sentencing contained in s 6 of the Crimes (Sentencing) Act and the purposes of sentencing contained in s 7.
69․The observations of Refshauge J in R v Carmody [2016] ACTSC 382 at [1] are apposite:
Physical violence in our communities is apt to disrupt the peaceful life of the community and is regarded by courts as serious. The courts must, therefore, do what is appropriate to denounce such violence and, although the courts obviously cannot prevent violence that has already occurred or eradicate its effects, it should make clear to the community and to offenders that such acts are prohibited.
70․This was a brazen attack in company involving gratuitous violence in public. The victim suffered very real harm as a result. It must have been a very frightening and painful experience. This kind of conduct must be resoundingly condemned. There is no place for members of the community to take the law into their own hands as the co-offenders appear to have done on this occasion. The purposes of sentencing most prominent are general deterrence, recognition of harm, punishment and denunciation. Specific deterrence also has significance in the context of Mr Dritsas’ criminal history and history of non-compliance with court orders. The prospect of rehabilitation given the views I have expressed at [47] are also relevant. Only a sentence of full-time imprisonment is appropriate to reflect the gravity of the offence and to respect the sentencing purposes of most relevance. No submission was made to the contrary. Mr Dritsas was assessed as suitable for an ICO and a community service condition. Those alternatives would not achieve an outcome that gives proper effect to the purposes of sentencing particularly in circumstances where his offending occurred while he was already serving a period of imprisonment in the community.
71․I must fix a sentence for the offence and then consider questions of accumulation or concurrence, applying the principle of totality in relation to the suspended sentence I have determined to impose: Pearce v The Queen (1998) 194 CLR 610 at 623-624. I have borne in mind that Mr Dritsas did spend three months and 30 days in custody in relation to one of the suspended sentences when assessing the structure of the sentence.
72․The sentence must be just and appropriate to reflect the total criminality of the offending: Mill v The Queen (1998) 166 CLR 59. I must set a non-parole period: s 65 Crimes (Sentencing) Act. Nominating a non-parole period involves a consideration of the sentencing purposes contained in s 7 Crimes (Sentencing) Act. The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. It is the minimum period of actual incarceration that an offender must spend in full time custody having regard to the objective seriousness of the offending, the offender’s subjective circumstances and the purposes of sentencing including punishment and rehabilitation.
73․The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien v The Queen [2015] ACTCA 47. I have had regard to those principles. I bear in mind the seriousness of the offending and the harm suffered by the victim. In light of the period within which Mr Dritsas has not offended and complied with bail conditions, together with his prospects for rehabilitation, I consider that a period of parole supervision will further strengthen the progress he has demonstrated and protect the community against further, in particular, violent, offending.
74․The starting point for the offence of recklessly inflicting grievous bodily harm is three years months and nine months’ imprisonment. For the plea of guilty, I will reduce that sentence by four months to three years and five months’ imprisonment.
Orders
75․I impose a conviction on CC2023/6124, the charge of recklessly inflict grievous bodily harm by joint commission on 4 September 2020.
76․The GBOs imposed on CC2019/8197 and CC2019/4943 are cancelled and I impose the following periods of imprisonment:
(a)For CC2019/8197: 10 months’ imprisonment, commencing on 16 October 2026 and ending on 15 August 2027
(b)For CC2019/4943: four months’ imprisonment, commencing on 16 October 2026 and expiring on 15 February 2027.
77․I impose the following sentence on the charge of recklessly inflicting grievous bodily harm by way of joint commission, three years and five months imprisonment, commencing on 16 October 2023 and ending on 15 March 2027.
78․The total sentence I impose will be three years and 10 months. The non-parole period starts on 16 October 2023 and ends on 15 November 2025.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 1 November 2023 |
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