Director of Public Prosecutions v Houghton

[2024] ACTSC 68

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Houghton

Citation: 

[2024] ACTSC 68

Hearing Date: 

8 March 2024

Decision Date: 

8 March 2024

Before:

McWilliam J

Decision: 

(1) Pursuant to s 24 of the Crimes (Restorative Justice)Act 2004 (ACT), the offender is referred for participation in the restorative justiceprocess.

(2) For the offence of recklessly inflicting actual bodily harm contrary to s 23 of the Crimes Act 1900 (ACT) (SCCAN 11/2024), the offender is convicted of the offence and sentenced to a term of 11 months and 19 days’ imprisonment, (reduced from 13 months on account of the guilty plea) to commence on 8 March 2024 and conclude on 26 February 2025.

(3) The sentence is suspended forthwith upon the offender signing an undertaking to comply with the good behaviour obligations under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) with supervision only for the period deemed necessary by ACT Corrective Services for a period of 18 months, to commence on 8 March 2024 and conclude on 7 September 2025, with a further condition that he undertake such further education, treatment, and further counselling (including with a psychologist) for his education, anger management, management of his anxiety or any assertive training as deemed appropriate by ACT Corrective Services.

Catchwords: 

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – recklessly inflict actual bodily harm – late plea to substitute charge – medium objective seriousness – where rehabilitation and victim’s interests may be appropriately taken into account by way of restorative justice.

Legislation Cited: 

Crimes Act 1900 (ACT) s 23, 24

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35(2)

Crimes (Sentence Administration) Act 2005 (ACT) s 86(1)

Crimes (Restorative Justice) Act 2004(ACT) ss 6, 14, 19(1)(b)(i)(A), 24, 25

Cases Cited: 

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Director of Public Prosecutions v Padreny [2024] ACTCA 4

Director of Public Prosecutions v Rohrlach [2023] ACTSC 166

DPP v Moala (No 3) [2023] ACTSC 306

Henderson v The King [2024] ACTCA 3

Hili v The Queen; Jones v The Queen[2010] HCA 45; 242 CLR 520

Laipato v The Queen [2020] ACTCA 35

Lloyd v The Queen [2022] NSWCCA 18

Markarian v The Queen [2005] HCA 25; 228 CLR 357

McLeod v The Queen [2018] ACTCA 59

Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99

MT v The Queen [2021] ACTCA 26; 17 ACTLR 22

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

R v Bugmy [2013] HCA 37; 249 CLR 571

R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32

R v Deng [2022] ACTSC 143

R v Forrest [2016] ACTSC 321; 11 ACTLR 311

R v Forrest (No 2) [2017] ACTSC 83 

R v Houghton (Unreported, ACT Supreme Court, 3 August 2012)

R v Howell [2018] ACTSC 155

R v Hudson [2019] ACTSC 110

R v Johnson [2019] ACTSC 179

R v Kilic [2016] HCA 48; 259 CLR 256

R v Lindsay [2020] ACTCA 25

R v Miller [2019] ACTCA 25

The Queen v Ruwhiu [2023] ACTCA 18

Veen v The Queen (No 2) (1988) 164 CLR 465

Texts Cited:

Bugmy Bar Book Committee, The Bar Book Project (The Public Defender, 2019)

Parties: 

Director of Public Prosecutions

Shane Christopher Houghton ( Offender)

Representation: 

Counsel

M Howe (DPP)

J Pappas and T Taylor ( Offender)

Solicitors

ACT Director of Public Prosecutions

Hugo Law Group ( Offender)

File Number:

SCC 31 of 2023

McWILLIAM J:          

1․Shane Christopher Houghton is before the court for sentence, having pleaded guilty earlier this week to the charge of recklessly inflict actual bodily harm, contrary to s 23 of the Crimes Act 1900 (ACT) (Crimes Act).  The maximum penalty for that offence is a term of imprisonment for 5 years.

Facts of the offending

2․The facts were agreed and contained in the following summary.  The conduct occurred in December 2021, at a time when the offender and the victim had been good friends for several years.  The victim lived in Greenway.  On 12 December 2021, a group of people include the offender and the victim met in Woden, drank for a number of hours, and consumed a significant amount of alcohol and illicit substances.

3․At some point during the evening, some of that group, including the victim and the offender, left the establishment in Woden and returned to the victim’s unit where they continued what the agreed facts described as a celebration of some sorts.  The evening became the early hours of the morning.  The victim and the offender had an argument.  As a result of the argument, the offender went out the front of the unit complex at around 2.30am.  The victim followed him outside some time later.  Once outside, the argument became physical.  The offender has then struck the victim to the upper body area causing him to fall to the ground.  In the course of hitting the ground, Mr Sanderson suffered an injury to his left arm that started bleeding immediately. 

4․The offender then went to depart the area.  Before doing so, the victim gestured to the offender by holding up his injured arm and asking him to look at it, in less than polite terms.

5․The victim went to hospital for 3 days.  He suffered a full-thickness incised wound approximately 4cm long to the outer aspect of the left forearm.  The injury required surgery and as a result, the victim now has a small scar.  The prosecution accepted that the injury did not amount to a permanent or serious disfiguring of the victim and the Court must proceed to sentence on that basis.

The Court’s sentencing task

6․The sentencing objectives are to be found in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).  In fulfilling those objectives, the Court does so according to the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56] and see the discussion in Director of Public Prosecutions v Rohrlach [2023] ACTSC 166 (Rohrlach) at [18]-[23] which remains appliable here.

7․There are a number of mandatory relevant considerations set out in s 33 of the Sentencing Act and these have been incorporated into the reasons that follow, to the extent that they are applicable to the present offender’s circumstances.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

8․The objective seriousness of the offence is determined by considering the nature and circumstances of the offence.  The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

9․The Court must consider where the facts of the particular offence committed by the offender lie in the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

10․The evaluation is “objective” in that the Court disregards matters personal to the offender and determines the seriousness wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

11․The Court does consider the subjective features (that is, the aspects of the offending which is personal to the offender) and the after-effects of offending, but these are separate considerations: s 33 of the Sentencing Act and McLeod v The Queen [2018] ACTCA 59 at [12].

12․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

13․It is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; Laipato v The Queen [2020] ACTCA 35 at [156]. In doing so, and in listing such considerations below, that does not constitute a checklist, the absence of any of which reduces the objective seriousness of the offence. It simply means the offence is not aggravated by that factor: DPP v Moala (No 3) [2023] ACTSC 306 per McCallum CJ at [24].

14․In R v Howell [2018] ACTSC 155 (Howell) at [13], Mossop J stated:

The objective seriousness of the offence must be judged by reference to both the nature of the behaviour in which the offender has engaged, indicating his level of moral culpability, as well as the nature and extent of the actual bodily harm suffered by the victim.

15․Here, the injury was serious enough for hospitalisation for three days and it required surgery.  The depth of the wound was indicative of significant force, although the parties were at pains to ensure that I did not draw the inference, in assessing the objective seriousness, that the injury itself was directly caused by the blow to “the upper body area”, being the carefully crafted language of the agreed facts.  Bearing in mind that injuries under this offence may be as minor as bruising, the conduct here is a moderately serious example of this type of offence.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

16․The offender is 31.  He has subjective features that were put before the Court as to background of social disadvantage. 

17․It is unnecessary to go into the detail of that history here, save as to say that none of it was challenged and it can be relied on in this Court: Lloyd v The Queen [2022] NSWCCA 18 at [45]. The same approach was taken by Refshauge AJ in relation to similar material of childhood disadvantage in R v Deng [2022] ACTSC 143 at [154]. Although that decision was later overturned on appeal for a different reason, the Court of Appeal held that the principles outlined in R v Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy) remained applicable and were taken into account on resentence: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [110].

18․Accordingly, the principles in Bugmy are applicable. In particular, the plurality judgment of the High Court recognised at [43]-[44]:

43.… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience.

…

44.…An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.  

19․In The Queen v Ruwhiu [2023] ACTCA 18 (Ruwhiu), Baker J (with whom Rangiah J agreed) stated at [126]:

The concept of moral culpability refers to an offender’s ‘moral blameworthiness’ for an offence: Paterson v R [2021] NSWCCA 273 at [29], per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing). An offender will be less morally blameworthy for an offence where their disadvantaged background in some way ‘explains’, is connected with, or otherwise sheds light on the offending. For the reasons I stated in R v Hagen [2022] ACTSC 362 at [42] – [43], a reduction in moral culpability does not require a strict causal connection between an offender’s disadvantaged background and the offending. However, where there is a strong causal connection (such as was the case in Bugmy (No 2)), an offender’s moral culpability may be “substantially reduced”: Bugmy (No 2) at [44].

20․The passage above in Ruwhiu has subsequently been cited with approval in Henderson v The King [2024] ACTCA 3 at [56].

21․A strict causal connection is thus not required, and in this case, I consider the connection is indirect, in the sense that it is likely to have impacted on his lack of emotional regulation and decision-making.  Such impacts are well documented: see the ‘Childhood Exposure to Domestic and Family Violence’ Chapter of The Bar Book Project (Bugmy Bar Book Committee, 2019) at 4-8.

22․The offender’s social deprivation and historical family violence context does not excuse the offending itself, but I have taken it into account in reducing moral culpability, as well as in crafting a sentence that is designed to support him in overcoming the disadvantage he has plainly suffered. 

Plea of guilty (s 33(1)(j) of the Sentencing Act)

23․The offender pleaded guilty to the charge following negotiations and the day before the jury was to be empanelled.  The plea was a means of inducing the prosecution not to proceed with the more serious charge.  It is properly seen as a plea to a substitute charge. The Court of Appeal has recently dealt with the principle that applies in such circumstances in Director of Public Prosecutions v Padreny [2024] ACTCA 4 (Padreny) at [75]-[81].

24․It involves taking into account the factors in s 35(2) of the Sentencing Act, which are as follows:

(2)In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:

(a)the fact that the offender pleaded guilty;

(b)when the offender pleaded guilty, or indicated an intention to plead guilty;

(c)whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;

(d)the seriousness of the offence;

(e)the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.

…

25․In Padreny, the following explanation was given for why the offender is not entitled to any significant discount (if at all):

75․ It is significant that s 35(2)(c) of the Sentencing Act expressly requires the Court to take into account whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty.

76.   The passage on which the Prosecution relied in Dib is at [5]-[6] (emphasis added):

If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

77․   Dib was later applied in cases such as R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (Borkowski)where it was stated at [32(9)]:

The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: R v Dib[2003] NSWCCA 117; Ahmad v The Queen[2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan v The Queen[2008] NSWCCA 296; (2008) 51 MVR 572; or the offender has delayed the plea to obtain some forensic advantage: R v Stambolis; Saad v The Queen [2007] NSWCCA 98...

78․   In this jurisdiction, the above passage in Dib has been referred to in cases such as Monfries at [38] and Slater v The Queen[2014] ACTCA 33 at [35].

79․   The applicability of Dib in this jurisdiction is reinforced when regard is had to the Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT). When discussing clause 35(2)(c), the reason for its inclusion was stated to be as follows:

Clause 35(2)(c) is included to enable the Court to discern whether or not a guilty plea associated with negotiations is intended to induce the appellant not to proceed with a more serious charge. Diminishing credit for guilty pleas associated with negotiations or bargaining is consistent with R v Gray [1977] VR 225, R v Shannon(1979) 21 SASR 442 and R v Lyons (unreported) 1993 CCA Tas 20. These cases argued that a lesser discount or no discount, for a plea of guilty is appropriate in circumstances where the defendant enters a plea as a means of inducing the appellant not to proceed with a more serious charge.

80․   The operation of the statute in this way has been confirmed in cases such as Toumo’ua, where the Court stated at [56]:

...s 35(2)(c) supports a focus on the utilitarian value that is associated with the timing of a plea of guilty. An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways.

81․   The principle applies in this jurisdiction for good reason. It would run contrary to the efficient administration of justice to apply a 25% discount for a guilty plea to a replacement charge made at a late stage in proceedings. To do so would defeat the incentive purpose of the discount, as an accused who pleads guilty to a lesser charge on the same facts on the eve of the hearing would obtain the same maximum sentencing discount as that applied for guilty pleas made much earlier, where no preparation of the case was required.

26․Applying that principle to the circumstances here, it can be seen that, the stage at which the trial for the more serious charge had reached remains a relevant consideration. In that regard, and relevant to considering the effect on the victim of this offence, the victim was required to be subpoenaed for the trial of the more serious offence and – as set out in the agreed statement of facts – had given some evidence in respect of a Basha enquiry as part of that trial the previous day.  The authorities above confirm that making no discount in such circumstances may have been within the Court’s discretion.  However, I accept that there was utilitarian value in the plea.  In those circumstances, the appropriate discount is 10%.   

Criminal history (s 33(1)(m) of the Sentencing Act)

27․The offender has a criminal record, which while not extensive, comprises a number of offences, which are indicative of underlying issues with aggression and violence.  For example, he has been previously convicted of affray, assault occasioning actual bodily harm and common assault, damaging property of less than $1000 in value and driving with a suspended licence.  He was not subject to any conditional liberty when the current offending occurred.

28․Applying Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478, the criminal history does not mean that the offender is given a longer sentence, but it speaks against leniency on account of no prior offences.

Current sentencing practice (ss 33(1)(za), 34A(a) of the Sentencing Act)

29․It is worth repeating that consistency of sentencing refers to consistency in the application of relevant legal principles rather than in numerical equivalence: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. The range of sentences previously imposed for a particular offence may offer guidance to sentencing judges, but it ‘does not fix “the boundaries within which future judges must, or even ought, to sentence”’: Hili v The Queen; Jones v The Queen[2010] HCA 45; 242 CLR 520 at [54], cited with approval in Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [84].

30․Bearing in mind that there are so many variables in the features for this particular offence, the prosecution has provided assistance by drawing the Court’s attention to three fairly recent cases, being R v Johnson [2019] ACTSC 179, Howell and R v Hudson [2019] ACTSC 110.

31․In Johnson, the offender struck the victim outside a nightclub, rendering the victim unconscious.  There was no evidence of any ongoing incapacity flowing from the loss of consciousness.  The offender was 20 years old at the time of the offence and had a criminal history that was “not extensive” but deprived the offender of leniency.  The sentence imposed was 9 months’ imprisonment, which was reduced to 8 months on account of the guilty plea.  Contrary to the submission made by the offender, the objective seriousness of the offending for which the offender was actually sentenced was significantly less than that under consideration here.

32․In Howell, the offender struck the victim in the head and then punched him numerous times whilst he was on the ground.  The victim suffered numerous injuries including a broken cheekbone that had ongoing consequences, in particular long-term nerve damage.  The offender was otherwise of good character, had no criminal history, and had suffered considerably as a result of the offence by losing his employment with the AFP, which played a significant role in the sentence that was ultimately imposed, being  a wholly suspended sentence of 6 months’ imprisonment with a good behaviour order of 30 months.

33․In Hudson the offender committed further offences while he was in custody for a series of previous offences, the surrounding circumstances of which were more serious than that under consideration here. The offender had set fire to his cell and physically obstructed officers from putting out the fire, including by using a makeshift razor blade and resisting attempts to hold him down.  Although the precise conduct leading to injury was somewhat unclear (as was the case with the present conduct), an officer suffered a torn bicep in the struggle which required surgery. A sentence of 21 months’ imprisonment was ultimately imposed, reduced to 17 months on account of the guilty plea.

34․I have also taken into account a previous offence relevant to this offender, as set out in R v Houghton (Unreported, ACT Supreme Court, 3 August 2012), which the defence brought to the Court’s attention. In June 2010, the offender and two others approached the victim, who had been attacked by two men on his way home and was unable to enter his house in time to escape. The offender then struck him repeatedly on the face. The victim suffered a cut to his cheek which did not require special medical attention. The injuries sustained in that incident were not as severe as that currently under consideration. Refshauge J found that ‘the fear engendered’ by the offender in the circumstances rendered the offence a serious one. The context also demonstrated a greater degree of foresight and planning involved in that offending as compared to the present offence. The offender pleaded guilty to assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, for which Refshauge J sentenced him to 14 months’ imprisonment, reduced to 10 months on account of the guilty plea, and a suspended sentence for a period of two years. 

Victim impact statements (s 33(1)(f) of the Sentencing Act)

35․There was no victim impact statement before the Court.  The Court is not in a position to speculate about what harm the offence has had on this particular victim.  However, the Court was informed of matters that indicate this victim still considers the offender, notwithstanding what happened, to be someone that he wants in his life.

Restorative Justice

36․Counsel for the offender requested a referral under the Crimes (Restorative Justice) Act 2004(ACT) (RJ Act). The offence is classified as a “less serious offence” to which s 14 of the RJ Act applies. Under s 19(1)(b)(i)(A) of the RJ Act, the offender is eligible because he has accepted responsibility for the commission of the offence through his plea of guilty.

37․The Court has the power to refer the matter for restorative justice if satisfied that there is an eligible offender, there is an eligible victim (in this case, being someone over 10 years of age), and that an explanation has been given under s 25 of the RJ Act, before the offender agreed to take part in the process.  Counsel for the offender confirmed that his instructing solicitor had carried out that process and that the offender has agreed to take part in restorative justice with the victim.

38․The mere fact of participation in the restorative justice process may or may not, of itself, be demonstrative of remorse: see R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part in restorative justice and the participation of an offender in restorative justice is a consideration that is relevant independently of statute: see R v Forrest (No 2) [2017] ACTSC 83 at [154] and the cases there-cited.

39․Among the objects of the RJ Act, set out in s 6, is a desire to “enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences”. This is a matter where restorative justice could be of real benefit, for both the victim and the offender. They will both be well aware that bad things can happen between friends when people drink to excess. The objective of the restorative justice process is focused on the victim. As section 46 of the RJ Act provides, the process can take many forms.  One feature of the process, for example, to ameliorate any real or perceived power imbalance that a victim may feel, is that it does not necessarily involve a face-to-face meeting. It may involve the exchange of written or emailed statements between participants, of pre-recorded videos between participants, teleconferencing or videoconferencing. 

40․I am setting all this out because the Court is unaware of whether the victim would be prepared to participate in restorative justice.  Restorative justice may empower the victim by giving him the opportunity to tell the offender how to make reparation to him.  Even if the victim does not want to hear soppy apologies from an old friend, the victim may be prepared to allow his friend to at least communicate his regret formally and in a private setting, for what was on any view a very serious injury, however the injury came to pass.

41․Accordingly, I will refer the matter.

Disposition

42․General and specific deterrence are both of importance for an offence of this type and with regard to this particular offender. As raised with the parties during the hearing, although a term of imprisonment is a sentence of last resort under s 10 of the Sentencing Act, it is the only appropriate sentence that properly recognises the objectives of denunciation having regard to the objective seriousness of the conduct that I have found, as well as those of general and specific deterrence.

43․Having said that, the offender has really seized the opportunity since the offending occurred, admittedly with court proceedings having over his head, to engage in a number of pro-social pursuits.  He has employment.  He is educating himself and getting a trade.  He has earned the trust of his employer who was in a position to give him a reference.  He has what is clearly very strong family support and evidence in the form of letters from his immediate family members has been taken into account in regard to how to craft the particular sentence for this offender.

44․In this case, the best way to protect the community is not to take those pro-social measures that have been actively pursued by the offender away from him.  The rehabilitation objective can best be achieved by suspending the sentence on condition that he enter into a good behaviour order for a period of 18 months.

Orders

45․The Court imposes the following sentence:

(1)Pursuant to s 24 of the Crimes (Restorative Justice)Act 2004 (ACT), the offender is referred for participation in the restorative justiceprocess.

(2)For the offence of recklessly inflicting actual bodily harm contrary to s 23 of the Crimes Act 1900 (ACT) (SCCAN 11/2024), the offender is convicted of the offence and sentenced to a term of 11 months and 19 days’ imprisonment, (reduced from 13 months on account of the guilty plea) to commence on 8 March 2024 and conclude on 26 February 2025.

(3)The sentence is suspended forthwith upon the offender signing an undertaking to comply with the good behaviour obligations under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) with supervision only for the period deemed necessary by ACT Corrective Services for a period of 18 months, to commence on 8 March 2024 and conclude on 7 September 2025, with a further condition that he undertake such further education, treatment, and further counselling (including with a psychologist) for his education, anger management, management of his anxiety or any assertive training as deemed appropriate by ACT Corrective Services.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice McWilliam

Associate:

Date: