Director of Public Prosecutions v Frith
[2022] ACTSC 333
•2 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Frith |
Citation: | [2022] ACTSC 333 |
Hearing Date: | 2 December 2022 |
DecisionDate: | 2 December 2022 |
Before: | Elkaim J |
Decision: | (i) For the offence of causing grievous bodily harm the offender is sentenced to 9 months’ imprisonment (reduced from 12 months) to commence today and end on 1 September 2023. (ii) The above sentence of imprisonment is suspended with immediate effect on condition the offender enter into a good behaviour order on core conditions for a period of nine months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – causing grievous bodily harm – significant delay – total rehabilitation. |
Legislation Cited: | Crimes Act 1900 (ACT) s 25 |
Parties: | ACT Director of Public Prosecutions Benjamin Douglas Frith (Offender) |
Representation: | Counsel M Howe (DPP) D Healey (Offender) |
| Solicitors ACT Director of Public Prosecutions David Healey Solicitors (Offender) | |
File Number: | SCC 162 of 2022 |
ELKAIM J
1․On 3 November 2022 the offender pleaded guilty to causing grievous bodily harm to another person contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty is five years’ imprisonment.
2․There is an agreed statement of facts in Exhibit A. The following is a summary. On 24 October 2008 the offender went to a friend’s 30th birthday party. The victim of the offence was also at the party. They were both members of the Australian Defence Force.
3․The offender and some other guests were invited to sleepover as they had travelled to the party from Sydney. While the guests were retiring some comments were made by the victim which the offender found offensive.
4․The offender struck the victim on his face about four times. The victim tried to defend himself by raising his hands. He was struck on two more occasions. This occurred in the early hours of 25 October 2008.
5․The injuries suffered by the victim included some cuts on his face but, most particularly, a comminuted depressed fracture to the left maxillary antral anterior wall. This is the bony structure surrounding an eye. The victim required surgery which included the insertion of a titanium plate which was screwed into place.
6․There is no victim impact statement and it is unclear whether the victim has continuing problems. He however probably have a permanent mental insertion in his cheek.
7․The objective seriousness of the offence is below medium. Some of the features I have taken into account are that the assault seems to have been unprovoked, the victim was in a vulnerable position, initially unable to defend himself, and the harm included a facial fracture.
8․The plea of guilty was entered after a criminal case conference on 27 October 2022. There has been considerable delay. A warrant was issued for the offender’s arrest in January 2012. There is no explanation for the four years following the offence. Then in December 2021, after the offender became aware of the warrant, he submitted himself to the ACT Magistrates Court.
9․Delay to this extent, some of it unexplained and not lying at the feet of the offender, can and should be taken into account when he is sentenced. It is also to the offender’s credit that he presented himself to the Magistrates Court when he became aware of the warrant. Most significantly, as stated in the prosecution’s written submissions:
It is accepted by the Prosecution that the significant passage of time since the offending has allowed the offender to demonstrate that he is a person of otherwise good character and that he is able to live a law-abiding life.
10․I have been provided with a letter of apology from the offender. In his letter he talks about his current life, his family and his employment. He talks about his military service and how the army environment was one of a “culture of hard, no-nonsense, tough non-commissioned officers that had mentored me over the years”.
11․The offender says:
One of the many things that my service in the Army has taught me is extreme accountability and I take full responsibility for my actions. I am truly sorry that I caused an injury to Mr Dwyer at the time of the incident and apologise to the court and all officials that this matter has taken up so much of their time to be resolved.
In summary, the man before you today is nothing like the younger, impulsive me. I feel I am more mature, considerate and caring person now as the sum result of all my experiences, my family and self growth. I think about the incident every day and I will forever be ashamed and sorry for my actions.
12․The offender says that his work in the Special Operations Command is likely to end as a result of his conviction.
13․I have been provided with five references. Mr Williams, a member of the Australian Defence Force, speaks highly of the offender’s role as a soldier. He says:
I was very impressed with Ben’s level of professionalism, reliability, and his humility. Ben is well respected by his colleagues and subordinates alike; he has consistently demonstrated great leadership, maturity, empathy and reliability.
Ben is extremely remorseful for his actions on that day in 2008…… He is deeply regretful for any injuries, physical or mental, that have arisen from the incident.
14․Mr Carey is also a member of the Australian Defence Force. He says that he has found the offender “to be a man of integrity, who adhered to and reinforced Defence values and Special Operations Command attributes required to serve in the SOCOMD. He continues:
Benjamin has undergone hardships and sacrifices, through his career and recently in his personal life; but he has always demonstrated and carried himself as a professional soldier with integrity and honour.
15․There is a letter from the offender’s partner, Ms Dasler. She writes about his attributes and his taking of responsibility. She says he is a devoted parent and has a strong work ethic. She says that he has often stated his regrets about the incident.
16․Mr O’Reilly, a diplomat, says that the offender is “a responsible, polite and considerate individual. He has always gone above and beyond to ensure that those in his company are well looked after”.
17․The final reference is from Michael Hutchings, also a soldier. He talks about the offender’s role as a parent and describes his volunteer work. He describes the offender’s remorse and concludes:
his behaviours will not be repeated; he strives only to be an active and positive role model in his children’s lives, community and remains an active mentor in my life.
18․Clearly the offender has, other than the offence, lived a good and productive life, devoted to his family and his work. I accept that he has expressed remorse for his actions.
19․Mr Healey, on behalf of the offender, has suggested a good behaviour order. The prosecution says that, because of general deterrence and the injuries involved, a term of imprisonment is appropriate. The prosecution does not however say that that term of imprisonment should be served by way of full-time imprisonment. Clearly the prosecution is leaving open the options of a suspended sentence or an Intensive Corrections Order (an ICO).
20․The offender lives in New South Wales making an ICO, if not impossible, certainly impractical. Because of the injury suffered by the victim the offence dictates a prison sentence. However the unusual factors of the case and the very persuasive subjective factors allow me to proceed by way of a term of imprisonment but suspended immediately.
21․Although the plea of guilty came after a criminal case conference I think I can also take into account that the offender voluntarily submitted himself to the Magistrates Court when he became aware of the warrant. I assess the discount at 25 per cent.
22․I make the following orders:
(i)For the offence of causing grievous bodily harm the offender is sentenced to 9 months’ imprisonment (reduced from 12 months) to commence today and end on 1 September 2023.
(ii)The above sentence of imprisonment is suspended with immediate effect on condition the offender enter into a good behaviour order on core conditions for a period of nine months.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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