Director of Public Prosecutions v Krutsky (No 2)
[2024] ACTSC 120
•24 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Krutsky (No 2) |
Citation: | [2024] ACTSC 120 |
Hearing Dates: | 22 March 2024; 10 April 2024 |
Decision Date: | 24 April 2024 |
Before: | Loukas-Karlsson J |
Decision: | (1) On the charge of recklessly inflicting actual bodily harm (ALT CC2022/10976), the offender is convicted and sentenced to 11 months and 21 days’ imprisonment to commence on 12 September 2023 and expiring on 1 September 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting actual bodily harm – where offender threw hot tea at a volunteer attending a corrections facility – offending committed in custody – offender would have been released on parole were it not for the current offending – serious example of the offence of recklessly inflicting actual bodily harm – s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) applies – no nonparole period imposed – direction under s 72(3) of the Crimes (Sentencing Act) 2005 (ACT) made – discount of approximately 10% applied for offer to plead guilty to offences carrying the same maximum penalty and broadly consistent with ultimate verdict ten days before trial – sentenced to term of imprisonment – legislative amendment to s 64(2)(e) |
Legislation Cited: | Crimes Act 1900 (ACT) ss 19, 20, 23, 24, 25, 26, 27(3)(c) Crimes Legislation Amendment Act 2024 (ACT) ss 2(1), 8 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 64, 64(2)(e), 65, 66, 72, 72(3), 72(4) Crimes (Sentencing Administration) Act 2005 (ACT) s 118(2) Criminal Code 2002 (ACT) s 403 |
Cases Cited: | Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 Cheung v The Queen [2001] HCA 67; 209 CLR 1 DPP v Featherstone [2022] ACTSC 307 DPP v Krutsky [2023] ACTSC 402 DPP v Manns (No 2) [2023] ACTSC 405 DPP v Wickes [2023] ACTSC 296 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Horan v O’Brien [2021] ACTSC 323 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Krutsky v McCormick [2024] ACTSC 3 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Markou v The Queen [2012] NSWCCA 64 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Murray v IA [2020] ACTSC 288 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Collier [2022] ACTSC 18 R v Engert (1995) 84 A Crim R 67 R v Garay (No 4) [2022] ACTSC 138 R v Gordon [2022] ACTCA 48 R v Isaacs (1997) 41 NSWLR 374 R v Johnson [2003] NSWCCA 129 R v Kilic [2016] HCA 48; 259 CLR 256 R v Knight [2005] NSWCCA 253; 155 A Crim R 252 R v Krutsky; R v Weldon [2017] ACTSC 359 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Newman; R v Reid [2016] ACTSC 102 R v Oinonen [1999] NSWCCA 310 R v Pham [2015] HCA 39; 256 CLR 550 R v Potts [2018] ACTSC 299 R v Rappel [2019] ACTCA 11 R v Roberts [2020] ACTSC 296 R v Tuifua [2021] ACTSC 298 R v Verdins [2007] VSCA 102; 16 VR 269 R v Winters [2019] ACTSC 245 R v Winters [2022] ACTSC 42 R v Wright; R v Edgerton [2021] ACTSC 12 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | Director of Public Prosecutions R Krutsky ( Offender) |
Representation: | Counsel M Dyason ( DPP) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Fortify Legal ( Offender) | |
File Number: | SCC 53 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․On 24 November 2023, I found Ms Rebecca Krutsky (the offender) guilty of the following offence:
(a)an offence of recklessly inflicting actual bodily harm (ALT CC2022/10976), contrary to s 23 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 5 years’ imprisonment.
2․The offender was originally charged on indictment with intentionally inflicting grievous bodily harm, contrary to s 19 of the Crimes Act. At trial, I was not satisfied beyond reasonable doubt that the injuries suffered by the victim constitute grievous bodily harm and that the offender had the requisite intention: DPP v Krutsky [2023] ACTSC 402 at [73], [112] (trial judgment).
3․I also note at the outset that the offender was serving a sentence for separate offending at the time of committing the current offence. The offender was sentenced by Magistrate Theakston for:
(a)two counts of act endangering life, contrary to s 27(3)(c) of the Crimes Act.
(b)one count of damaging property contrary to s 403 of the Criminal Code 2002 (ACT) (Criminal Code).
4․I dismissed a sentence appeal concerning those matters in July 2023: Krutsky v McCormick [2024] ACTSC 3 at [6] (Krutsky). The offender was sentenced to 18 months’ imprisonment to be served concurrently from 8 September 2022 to 7 March 2024 for the two endangering life counts, and to 18 months imprisonment commencing on 8 September 2023 and concluding on 7 March 2025 for the damaging property count: Krutsky at [2]. The total head sentence is therefore two years and six months’ imprisonment, beginning on 8 September 2022 and expiring on 7 March 2025, with a non-parole period of 11 months: Krutsky at [5]. Magistrate Theakston also imposed a reparation order in the sum of $1,500.00: Krutsky at [5].
5․As noted in the prosecution’s and the offender’s sentencing submissions, the offender was granted parole for these offences on 20 September 2023 but is currently being held on remand for the current offending. In other words, it was accepted by both parties that the offender would have been released on parole were it not for the current offending committed in custody.
Facts of the Offending
6․The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court’s role in sentencing following a verdict of guilty after trial. The Court in Cheung at [14] referred to the summarised principles from Isaacs, albeit in that case following a jury trial. I summarise the relevant principles below:
(a)Where an offender has been convicted of an offence, the power and responsibility of determining the sentence rests with the judge.
(b)It is the duty of the judge to determine the facts relevant to sentence. Some of the relevant facts will have emerged in evidence at the trial. Other facts may only emerge during the sentencing proceedings.
(c)The primary constraint upon the power and duty of the judge is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict. Consistency with the verdict is therefore a primary consideration.
(d)A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. Thus, any aggravating factor on sentence must be proved beyond reasonable doubt.
(e)There is no general requirement that a sentencing judge must sentence an offender on a view of the facts, consistent with the verdict, which is ”most favourable to the offender”. Nevertheless, it may be observed that the practical effect of proof beyond reasonable doubt, in a particular case, may be that, because the judge must resolve any reasonable doubt in favour of the offender, then the judge may be obliged, for that reason, to sentence upon a view of the facts that is “favourable to the offender”.
7․As I noted in R v Garay (No 4) [2022] ACTSC 138 (at [13]), while the verdicts in this case arose from a judge-alone trial rather than a jury trial, it is nevertheless apposite to have regard to relevant general principles articulated in Cheung: see also Filippou v The Queen [2015] HCA 29; 256 CLR 47 especially at 71 (French CJ, Bell, Keane and Nettle JJ).
8․Accordingly, I take these principles into account in making the findings of fact below in relation to the offence against the victim in this case.
9․At stated earlier, the two primary issues at trial were whether the victim’s injury amounted to grievous bodily harm and whether the offender had the requisite intention: trial judgment at [34]. The offender had conceded in written submissions that the offender engaged in the relevant conduct and that the victim suffered actual bodily harm: see trial judgment at [35].
10․On 6 November 2022, the victim attended the Alexander Maconochie Centre (AMC) as a volunteer to facilitate a Narcotics Anonymous meeting. This meeting was co-facilitated by another volunteer (the co-facilitator). This was the third occasion on which the victim attended the AMC as a volunteer.
11․The meeting commenced in the Programs room at around 2pm that afternoon, which is contained in the female unit of the AMC. There were several detainees present.
12․The meeting commenced with the victim reading aloud from a pamphlet. Approximately 10 minutes after the meeting commenced, the offender walked into the Programs room. The offender was carrying two cups of black tea, one in each hand. The offender and the victim were known to each other, having met when they were both detained at the AMC between 2017 and 2018. The cups contained boiled water. The offender filled the cups in the kitchen area of the “WS1”, which is approximately a 100-metre walk from the Programs room, in another building.
13․The offender then walked towards the victim holding the two cups of tea. The victim believed that the offender was approaching her to give her a hug. The offender, standing approximately 20 centimetres from the victim, proceeded to pour the two cups of tea over the victim’s upper chest and back area.
14․The victim felt instant, intense pain and removed the jumper she was wearing. The victim understandably then said to the offender, “[W]hat the fuck?”. The offender replied with words to the effect of “[Y]ou know”.
15․The victim then went to the bathroom with the intention of putting cold water on the affected area. At this point, the victim noticed that her skin had started to peel.
16․Shortly after this and after hearing the screams of the victim, two Corrections Officers, Officers Sanotti and Schneider, saw the victim clutching her chest and being escorted away from the Programs room. As the Corrections Officers approached the Programs room, they heard other detainees shouting, “[S]he jugged her, she jugged her, it was Krutsky”.
17․The two Corrections Officers then approached the offender, who was walking between the Programs room and WS1. The offender was seen holding two cups that were folded into each other.
18․Officer Schneider asked the offender, “[W]ho did it?” and “[D]id you throw boiling water over that person?”. The offender responded yes and said, “[I]t wasn’t boiling water, it was just two cuppas”.
19․The victim was then taken to the Emergency Department at Canberra Hospital by the co-facilitator. She had a cold shower for approximately 15 minutes and was then treated for her injuries and given pain relief. The victim had blisters over her neck, back, chest and underneath her breasts. Photos of the injuries were taken at the hospital and were tendered by the prosecution at trial.
20․Since the incident, the victim has attended the hospital several times to have the dressings on her injuries changed. She continues to experience “stinging” and sensitivity in those areas. The impact upon the victim is described in her own words in the Victim Impact Statement which is set out below.
Victim Impact Statement
21․A Victim Impact Statement was read out at the sentence hearing from the victim and included the following eloquent passages:
This act of violence has impacted me both physically and mentally. I am scarred on my chest and underneath my breasts. I have different pigmentation all over my chest and down my back. This has significantly affected my confidence and pride in my appearance. I have not been able to spend much time in the sun as my skin burns so easily, even with sunscreen. I had to take a month of work to recover, with the first couple of weeks spent in bed unable to move much at all due to the intense pain I was experiencing. This caused financial strain for me and my family which caused a flow on effect that took us much longer than the month I took off to rectify. Being unable to do much meant that I was isolated which triggered my depression and has resulted in me being prescribed medication to help me get through.
After I recovered physically, I struggled to return to normal life, I was scared to leave my home on my own, I was even scared to go to Narcotics Anonymous meetings (which had been my safety for years), and I lost my faith in what I was doing with my life. I went to the AMC to help people and was violently attacked while doing it. My faith in people was shattered and I nearly gave up on helping people altogether. I struggled for nearly a year with this, and it has taken me a very long time to get to where I am today, which is still not where I was before this incident.
I still do not understand why this happened to me, I never had any problems with [the offender’s first name] and never did anything wrong to her. Not knowing why I was attacked and now permanently damaged still plays on my mind today, still causes me distress and fear. I am fearful of seeing [the offender’s first name] again, I do not have confidence that she will not retaliate and hurt me again.
22․The Victim Impact Statement also contained details on how the victim had worked to establish Narcotics Anonymous meetings in the AMC and described the attack by the offender as being the reason the meetings were stopped and are yet to be resumed at the AMC. The prosecution’s sentencing submissions also noted that Narcotics Anonymous is not currently attempting to have a presence in the AMC. Regrettably, the offender’s criminal conduct has had a detrimental effect for inmates at the AMC who would have wanted to attend a Narcotics Anonymous meeting at the AMC as part of their rehabilitation.
23․Counsel for the offender did not contest that the Narcotics Anonymous’ lack of current presence at the AMC is due to this offending.
24․The Court acknowledges the importance of what the victim expressed in her statement. The Court recognises the serious and long-lasting effects of this crime on the victim and acknowledges the significant impact that the offence has had on the victim.
25․I repeat what I said at the sentencing hearing. I found the statement by the victim to be very balanced, thoughtful, and incisive. I note the importance of Narcotics Anonymous for recovering addicts. The victim did not deserve what happened to her. Her family did not deserve to see her suffer. The women at the AMC did not deserve to lose the Narcotics Anonymous meetings that could help change their lives for the better. Rehabilitation in prison is important, both for the community and for offenders so that people can be released from prison rehabilitated and not commit further crimes to the detriment of our society. Recidivism is detrimental to the safety of our community.
26․I asked the prosecution’s counsel to convey to the victim that I have heard, understood, and appreciated her Victim Impact Statement. With that being said, I have also asked the counsel of the prosecution to convey to the victim that the Court must, of course, in the sentencing exercise apply the proper principles of law to the correct facts, and I must, as a judge, balance all the relevant sentencing considerations in coming to a sentence.
Issues in this hearing
27․It is useful at the outset to note two main areas of contention on sentencing that emerged between the parties at the sentence hearing. The first is the appropriate discount that ought to be accorded to the offender for her offer
sto plead guilty. The second is the appropriate structure of any sentence of imprisonment in light of the applicable principles and the fact that the offending was committed in custody: see Crimes (Sentencing) Act 2005 (ACT) ss 64(2)(e), 72(3) (Sentencing Act), Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 (Biddle).28․The fact that the offending took place in custody means that ss 64 and s 72 of the Sentencing Act are engaged: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [85] (Carberry), R v Tuifua [2021] ACTSC 298 at [2]. If I were to impose a sentence of imprisonment for the offence, s 64(2)(e) prevents me from imposing a non-parole period for the term of imprisonment. This precludes parole for the offence: Carberry at [85], Biddle at [22]-[23].
29․Further, s 72 requires that any sentence of imprisonment imposed for the instant offending be served consecutively with the offender’s existing sentence by default unless I made a direction under s 72(3) for the sentence to be served concurrently: Carberry at [93],[95].
Objective seriousness: Consideration
30․It is well established that objective seriousness for recklessly inflicting actual bodily harm is assessed through both the offender’s culpability and the degree of bodily harm occasioned: R v Wright; R v Edgerton [2021] ACTSC 12 at [31] (Murrell CJ), cited in DPP v Manns (No 2) [2023] ACTSC 405 at [27] (Loukas-Karlsson J) (Manns No 2).
31․At the sentence hearing, the difference between the parties regarding objective seriousness sensibly and considerably narrowed down. On this basis, the following is accepted by the Court:
(a)there was a lack of pre-meditation or planning, as such in, the offending. The prosecution maintained that the offending was not “spur of the moment” or “instantaneous”. That is, the offending was to a significant degree immediately proximate, being a shade higher than a spur-of-the-moment decision. Counsel for the offender properly maintained that there is no evidence of planning, but ultimately agreed that there is little, if any, significant difference between his submission and a finding that the offending was “immediately proximate”.
(b)the offending involved the use of a “weapon” on a very broad interpretation. That is, that hot tea is “an item or object that can be used or amended to inflict harm”. Both parties properly agreed that this factor would not significantly aggravate the offending.
(c)the offending involved a betrayal of friendship, but not a breach of “trust” in the accepted legal sense. As noted at [13] above, the victim thought the offender was about to give her a hug. Ultimately, I am also not satisfied that the betrayal of friendship is an aggravating factor beyond reasonable doubt. However, clearly this is a matter that forms part of the subjective circumstances and factual matrix of the offence. The prosecution properly did not cavil with this characterisation.
(d)there is some level of vulnerability faced by the victim in this case by virtue of her being at the AMC. Nevertheless, it was properly conceded by counsel that, while of significance, in all of the circumstances the level of vulnerability is not a substantially aggravating factor on the facts of this case.
32․For the offender’s degree of culpability, the prosecution correctly submitted that the offender was reckless, in that the offender thought of the consequences of her action, “realised the possibility of the injuries being occasioned” and nevertheless still proceeded.
33․The prosecution properly noted that while at trial I was not satisfied beyond reasonable doubt that the injuries suffered by the victim rose to the level of grievous bodily harm, in the sense of being “really serious injury”, I was nevertheless satisfied beyond reasonable doubt that the injuries did result in “serious bodily harm”: trial judgment at [77]. As noted by the prosecution, inherent in this finding is a finding that the victim’s injury is “not merely transient and trifling” and that the injury has significantly interfered and continues to interfere with the victim’s health and comfort: trial judgment at [97], [99], citing Markou v The Queen [2012] NSWCCA 64; 221 A Crim R 48 at [17]. The prosecution ultimately submitted that the degree of bodily harm suffered by the victim is “significant”. I agree. So much is clear from the evidence at the trial.
34․Counsel for the offender in written submissions submitted that the offending is “moderately serious” overall. Further, counsel for the offender correctly submitted the following:
(a)the offending is an example of the less serious reckless infliction of actual bodily harm, rather than the more serious intentional infliction. It is of course self-evident that I am sentencing on the basis of recklessness not intention;
(b)“there was no sophistication”. In my view this is clear on the facts; and
(c)the seriousness of the harm falls towards the more serious end given that the victim suffered burns, some of which have caused scarring that is still present at this time. In my view that is clear on the evidence.
Objective Seriousness: Conclusion
35․An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. However, it is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality; such labels can be somewhat opaque. What is required is for a court to “identify fully 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 R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
36․Broadly, I note the following facts, matters, and circumstances that that bear upon the objective gravity:
(a)the offender’s reckless actions resulted in serious bodily harm to the victim;
(b)as stated earlier at [31](a)], the offending was not planned but was clearly slightly higher than spur of the moment;
(c)again as stated earlier at [31](b), while hot tea could arguably meet the very broad definition of a weapon, this matter would not significantly aggravate the offending on the facts of this case;
(d)the betrayal of friendship is not a breach of trust in a technical legal sense and therefore not an aggravating factor concerning objective seriousness. It is nevertheless a significant part of the factual circumstances; and
(e)while it is significant that the victim faced some level of vulnerability in the sense of being present at the AMC, this is not a substantially aggravating factor on the facts; and
(f)the seriousness of the harm falls toward the more serious end, given that the victim suffered burns and there remains scarring that is still present, at this time.
37․Ultimately, it can be stated that the offending is indeed a serious example of the offence of recklessly inflicting actual bodily harm, taking into account the factors discussed above.
Subjective circumstances
38․In evidence before me is a pre-sentence report (PSR) of March 2024 prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
Prior Contact with Corrections
39․The offender is currently 52 years old. She has been known to the ACT Corrections Service since 1996 when she was sentenced to a supervised Good Behaviour Order (GBO). The offender has since been subject to numerous supervised orders. She has also served periodic detentions as well as multiple periods of incarceration. Her most recent supervised order was in 2016 when she was subject to parole. Service records indicate she successfully completed that order.
40․Consistently with the parties’ submissions, the PSR noted that the offender has been subject to a parole order for other offences since 20 September 2023. However, Corrective Services has self-evidently not been unable to supervise her on that order as she is currently being held on remand for the current offending. She is subject to that parole order until 7 March 2025.
The Offender’s Family / Marital Status
41․The offender noted that she was an only child. She described her upbringing in positive terms, with no exposure to violence or substance abuse in the family home. She did report that she lived a transient lifestyle around Australia and Singapore throughout her childhood and adolescent years due to her father’s employment in the Navy.
42․The offender said that she maintained a close relationship with her father until his passing in 2016. She reported that his passing significantly impacted her mental health. She also reported an ongoing loving relationship with her mother. She was caring for her mother due to the latter’s diagnosed dementia prior to her current incarceration. She noted that her mother is now housed in an aged care facility, and that her health is rapidly deteriorating. [Redacted].
43․The offender advised that she has six children, three adults and two teenagers. [Redacted]. She described a loving relationship with her three adult children. The offender also reported the death of a daughter caused by Sudden Infant Death Syndrome at four months old, and that she continues to experience grief and loss trauma surrounding this event.
44․The offender reported being in a relationship for 20 years with the father of five out of her six children. The author of the PSR noted that the father is also known to Corrective Services, and he has been incarcerated at the AMC for the past 12 years. The offender nevertheless described this relationship as supportive, despite having irregular contact due to his incarceration.
Socioeconomic Circumstances
45․Prior to her incarceration, the offender had been residing in her ACT Housing property in Taylor, ACT. She has since been evicted and has also been accepted into the Justice Housing Program (JHP). The offender plans to reside at a property through this service. The PSR noted that she was allocated a property at the time of her parole application. However, she was placed back on the waitlist as a lengthy period has passed since that application.
46․The offender reported that she obtained her year 12 certificate through formal schooling. She noted that she had attended around 12 different schools due to her family’s frequent relocation, given her father’s employment in the Navy.
47․In the community, the offender reported she managed her own disability support business funded by the National Disability Insurance Scheme (NDIS). The offender advised that she obtained a Certificate ll in Disability in 2017. The offender reported an infrequent employment history on a casual basis prior to 2017. She was working in the disability support industry until her current incarceration. She stated that she plans to return to that employment upon release. The offender was unable to provide documentation to verify this information as she is in custody, although she provided an Australian Business Number (ABN) to the author of the PSR. A Google search of this ABN conducted by the authors of the PSR confirmed that it is linked to one Rebecca Krutsky but does not name the business attached to the ABN. The offender noted that she will apply for Centrelink benefits until she secures employment in disability support.
Alcohol and Drug Use
48․The offender reported ongoing cannabis use since she was 16 years old. She reported that her cannabis use was mostly recreational, and that she would typically consume on weekends and sometimes during the week.
49․The offender also reported irregular heroin use for a few months when she was 17 years old. This use apparently quickly became problematic after the offender experienced a significant life event and she used heroin to mask her psychological pain. She advised that she ceased problematic heroin use when she was in her twenties. However, the offender noted that she has continued to use heroin periodically since.
50․The offender reported that she engaged in the Methadone Program from 2016 until 2022, when she entered custody. The offender has been engaged with Toora Women’s Inc. (Toora) whilst in custody, and she has expressed intention to continue working with their service when released. The PSR noted that Toora have confirmed that Ms Krutsky is on the waitlist for their AOD day program.
51․The PSR cited service records that show that the offender was subjected to periodic drug tests while in custody. I note that the last 6 tests, conducted between 7 February 2023 and 3 January 2024, all returned negative results.
52․Ultimately, the PSR concludes that the offender had a long history of illicit substance use, to which she disclosed she would typically consume drugs to mask psychological pain from her trauma background. The PSR notes that it is to her credit that the results from her tests have returned negative.
Medical Matters
53․The offender reported she was diagnosed with depression and anxiety in 2008 and has been medicated for both since 2018.
54․Further, the offender cited two significant life events that continues to impact her mental health. She stated that she had engaged in grief and loss counselling at the time of the sudden passing of her four-month-old child, and also noted further engagement in counselling with the Supports and Interventions Unit (SIU) in custody.
55․In concluding, the PSR recommended that the offender engage in further mental health interventions when she is released from custody. The PSR also further notes that residing in a JHP property will give the offender access to case management services by St Vincent De Paul’s.
Other Reports
56․As part of the offender’s tender bundle, I was taken to a psychologist report prepared by Mr Watt dated 19 March 2024 (the Watt Report).
57․I note that counsel for the offender advised that the offender did not rely on paragraphs [19.1]-[19.2] of the Watt Report. The paragraphs covered the nexus between the offence and the offender’s mental health impairment. I accordingly do not rely on paragraphs [19.1]-[19.2].
58․Counsel for the offender further clarified that he is not seeking to rely on the Watt Report to demonstrate that the offender engaged the Verdins principles in so far as the principles relate to potential amelioration of moral culpability arising from the offender’s mental health. Further, counsel also submitted that the Court could rely on the Watt Report’s wider findings on the offender’s mental health as part of the offender’s subjective case.
59․The Watt Report made a number of observations and recommendations. The offender disclosed to Mr Watt that she was subjected to emotional abuse and strict discipline from her father as a child. [Redacted]. [Redacted]. The offender noted these circumstances had caused her PTSD and she subsequently self-medicated by using heroin. These additional matters were over and above what was elucidated in the PSR.
60․The offender also reported to Mr Watt that she was diagnosed with PTSD and anxiety when she was 19 years old, and that she also received some trauma counselling at the time. This was an additional detail to the observations of the PSR.
61․The Watt Report diagnosed the offender as follows:
…
Current Conditions:
F34.1 Persistent Depressive Disorder (Dysthymia), with intermittent major depressive episodes, without current episode, mild to moderate, medicated, in partial remission.
F11.20 Opioid Disorder, moderate to severe, in full remission.
…
Possible Underlying Conditions:
F43.10 Post-Traumatic Stress Disorder (PTSD), chronic, sexual trauma.
62․The Watt Report ultimately noted the following on the impact of potential imprisonment:
[The offender] would benefit from receiving further counselling for her depressive condition and also further trauma counselling regarding the PTSD. She needs psychoeducation about dealing triggers as well as emotional regulation skills in the context of understanding her emotions and behaviours related to her past traumas that have been outlined.
…
The impact of further imprisonment could have a detrimental effect on the offender’s depressive condition. It is understood that she has served six months on remand for the index offence and that she has made an effort to change her behaviour and be cooperative with AMC staff. Her prognosis is good if she completes the counselling suggested and continues to take her prescribed medication.
…
It is recommended that the mitigating factors outlined, along with [the offender]’s mental health impairment, subjective circumstances, post-traumatic stress issues, stated remorse, change of lifestyle whilst in custody and her willingness to engage in treatment be taken into account at sentencing.
63․I will take the Watt Report into account in sentencing, save for the deleted paragraphs referred to above at [57].
Remorse
64․The PSR noted that the offender expressed the belief that her charge had changed to assault occasioning actual bodily harm. While Corrective Services noted that it does not have documentation regarding this change, I note that the offender’s belief of the change is consistent with my finding at trial that the victim’s injury does not meet the legal standard for grievous bodily harm: trial judgment at [73], [79].
65․The PSR contained the following excerpt concerning accepting responsibility:
[the offender] verbalised victim empathy, and was able to identify the impact her actions may have caused for her victim. She expressed that her actions were not premeditated, nor commissioned with malicious intent, however accepted responsibility for the harm caused from her actions.
66․Further, the Watt Report also noted the following concerning remorse:
[The offender] stated that she was “very sorry for what happened” and that she was not expecting the victim to be in the room at the time. She said that she was triggered. She said that her actions had ramifications and that she showed that she needed to do more work on herself. She stated again that she was “extremely sorry for what happened”. She said that she has been working on her mental health and using more tools to maintain “a balanced lifestyle”.
67․Also in evidence before me is a letter from the offender dated 19 March 2024, forming part of the offender tender bundle. Among other things, the letter included these passages concerning remorse as well as the offender’s desire to apologise to the victim and to participate in restorative justice:
In regard to the offence, I have spent countless hours replaying the events of that day. There is no overt reason or malicious intent associated with what transpired. I would like to emphasise that I am extremely sorry for [the victim’s first name] being hurt. And would like the opportunity to formally apologise to her, take accountability for the incident and make amends to her if possible…
I have had considerable time to reflect on that day, to think about what impact it has had. Consequently, I feel a moral need and desire to apologise to her personally, enquiring about restorative justice and believe by having the opportunity to participate I could demonstrate to her and the courts that I am sincere in my apology, as we had been friends prior to that day. I can only hope that she will agree to an organised meeting so that I can apologise to her in person.
[paragraphs break added]
68․In light of the evidence, I will ascribe appropriate weight to the offender’s expression of remorse. I will further discuss restorative justice at [122]-[124] below.
References & Certificates
69․Included in the offender tender bundle are references that were tendered in support of the offender. I also note that certificates were tendered, namely:
(a)Statements of Attainment relating to competencies forming part of Certificate III in Hospitality;
(b)Certificate of Completion for the “Better Connections: Foundational Skills for Developing Emotional Literacy and Healthy Communication” course;
(c)Statements of Attainment for the “Participate in safe food handling practices” course;
(d)Statement of Attainment for the “Crystalline Silica Prevention” course;
(e)Certificate of Participation in the “The Circle of Growth” alcohol and other drug recovery program for women;
(f)Certificate of Appreciation awarded for the offender’s participation in an educational session on viral hepatitis;
(g)Certificate of Participation for the offender’s participation in an educational session on viral hepatitis and liver health;
(h)Statement of Attainment for completing “Identify and report asbestos containing materials” course;
(i)Certificate of Completion for the “Bringing Up Great Kids” parenting course;
(j)A second prize and Best New Entrant award in the AMC Creative Writing Competition 2023; and
(k)A Certificate of Completion for the EQUIPS Program.
70․The first reference is a signed reference from the offender’s work supervisor at the AMC, dated 13 March 2024, and includes the following concerning the offender’s creditworthy work in custody:
Detainee Krutsky has been employed in the AMC Bakery since 13/06/2023 and during this time she has proven to be a reliable and willing worker, she has displayed good work ethic at all times and her attendance has been very good[. S]he works well independently & also in the team environment, she has a quiet and polite disposition [and] when directed to complete a work task, she does so willingly. Detainee Krutsky is very polite and has responde[d] well to direction. Detainee Krutsky has a very positive attitude, she is very hard working, courteous, shows a willingness to learn and enjoys her work.
71․There is also a signed reference from another AMC work supervisor, dated 15 March 2024, which includes similar observations:
Since her incarceration, Miss Krutsky has been involved in various employment roles within the AMC. Through these roles she has displayed a positive work ethic, shown she can work autonomously as well as part of a team, and has encouraged others to display pro-social behaviours within the centre.
…
Miss Krutsky attends work with no absences, receiving positive comments regarding her work performance from workplace supervisors. She has showed that she is a valuable working member of the AMC and continues to show enthusiasm toward her participation.
72․The bundle also included an email reference from the offender’s daughter and eldest child, dated 19 March 2024. The email included the following concerning her mother, the offender, and her long-term drug addiction and more recent dedication to sobriety:
My mother … has been through a lot in her life, from being violently assaulted in her teenage years to [losing] a child, and many things in between. Then more recently in 2019 my youngest child ([the offender’s] grandchild) passed away.
[The offender] has struggled on and off with addiction for the larger part of her own life now and my entire life, however she has had long periods of years at a time where she has been drug[-]free and healthy, and when she is she is actually very well spoken, caring and kind, funny, a good person.
I hope for her to be released to have a chance to show that she is committed to a happy and drug[-]free future for her older years for herself, for her children and grandchildren.
I’ve been in regular contact with her since her incarceration and she seems to be dedicated to sobriety and has been working on her mental health and positivity[.]
During the time she’s been in custody I’m aware that she’s been working 2 jobs at the Alexander Maconochie Centre, as barista at the cafe that works during visitations and as the bakery leading hand, also studying and completing bakery skills [Certification] 2 to further her education.
73․Finally, there is also an email reference from the offender’s son, dated 18 March 2024. The reference included the following:
I know that [the offender] has been found guilty of an assault. It is a shock to me as she is not a violent person. She has never been [physical] or ever hit me or my sisters even as a punishment as a child. We've always had a very close relationship and I have missed her a lot since she has been in jail. She wasn't home for my 18th birthday and was unable to see me graduate [year] 12 but I have her to thank for my success. Without her help, love and support as well as the extra tuition I would not have passed my exams.
…
I am sure that given a chance she will prove that she will not [reoffend] again and I will support her in any way that I can to achieve this.
74․I take these references into account on sentence.
Criminal History
75․The offender has a criminal history.
76․The PSR noted that the offender has a “longstanding, although infrequent” criminal history. Her criminal history commenced in 1992 and spans across ACT, New South Wales and Queensland. Her record includes a range of offences in relation to driving, drugs, assault, theft, conspiracy, and breach of community orders. The offender’s long history of interaction with the criminal justice system is acknowledged in written sentencing submissions by her counsel, who properly submitted that this is unsurprising given the offender’s long-term history of drug use.
77․As highlighted in the prosecution’s written submissions, the offender’s criminal history included a conviction for an assault occasioning bodily harm on 29 November 2017. Elkaim J sentenced the offender to 9 months imprisonment for this previous offence, which apparently arose from a “misguided attempt to retrieve a television set” that the offender and her co-offender thought stolen by the victim’s boyfriend: R v Krutsky; R v Weldon [2017] ACTSC 359 at [4].
78․As I noted earlier at [3], the offender has more recently also been convicted and sentenced for two counts of acts endangering life and one count of damaging property: Krutsky at [2].
Offer to plead guilty prior to trial
79․To consider this issue it is necessary to set out the following background. The offender was found not guilty of intentionally inflicting grievous bodily harm (maximum penalty of 20 years’ imprisonment) and not guilty of the statutory alternative of recklessly inflicting grievous bodily harm (maximum penalty of 13 years’ imprisonment). The offender was found guilty of the statutory alternative of recklessly inflicting actual bodily harm. The offence of recklessly inflicting actual bodily harm carries a maximum penalty of 5 years imprisonment.
80․As indicated above at [27], determining the appropriate discount for earlier offers to plead guilty prior to trial was an issue at sentence.
81․At the sentence hearing, I ordered that envelopes containing the criminal case conference form from the criminal case conferences be opened and for counsel to have access to the relevant documents.
82․The documents revealed case conference negotiations in July 2023. Subsequently, a final offer to plea was made on Friday, 10 November 2023. The offender had apparently offered to plead guilty to occasioning grievous bodily harm or assault occasioning actual bodily harm, in full satisfaction of the indictment. As noted by the counsel for the offender, this was 10 days before the trial for the offender was set to start. As noted above, both offences carry the maximum penalty of 5 years’ imprisonment. This offer was apparently rejected by the prosecution on Monday, 13 November 2023. The date of the commencement of the trial was 20 November 2023.
83․Counsel for the offender submitted that the offender is entitled to a discount as there had been a rejected offer of a plea of guilty and the offender was convicted of a charge that carried the same maximum penalty: Manns No 2 at [119], citing R v Oinonen [1999] NSWCCA 310 (Oinonen), R v Johnson [2003] NSWCCA 129 (Johnson). Counsel for offender submitted that a discount of 10% was appropriate for the 10 November 2023 offer.
84․Ultimately, at the April sentencing hearing, counsel for the prosecution properly on the relevant authorities and the facts of this case accepted that a discount of 10% is appropriate for the 10 November 2023 offer to plead guilty: see Manns (No 2), Oinonen, Johnson.
85․In my view, a discount of approximately 10% is clearly appropriate taking into account the matters discussed above.
86․I made the following relevant observations in Manns No 2 (at [119]):
119.Counsel for the offender noted that on 28 March 2022, when the matter was still in the Magistrates Court, the offender made an offer to plead guilty to [use of carriage service to make a threat]. This offer was rejected by the prosecution. Consequences flow in sentencing from this offer by the offender and rejection by the prosecution. An offer of a plea that is rejected by the prosecution but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: R v Oinonen [1999] NSWCCA 310 ; R v Johnson [2003] NSWCCA 129 .
(emphasis added)
87․In this case, there had been an offer to plead guilty to relevant offences carrying the same maximum penalty and the plea offers were broadly consistent with the verdict. A discount of approximately 10% is appropriate.
88․In this context, it is relevant to note the following maximum penalties:
(a)inflicting actual bodily harm (Crimes Act, s 23): 5 years; and
(b)assault occasioning actual bodily harm (Crimes Act, s 24): 5 years;
(c)causing grievous bodily harm (Crimes Act, s 25): 5 years;
(d)common assault (Crimes Act, s 26): 2 years; and
(e)recklessly inflicting grievous bodily harm (Crimes Act, s 20): 13 years imprisonment.
89․Finally, as noted above at [79], the offender was charged on indictment at trial with intentional infliction of grievous bodily harm, an offence that carries the maximum penalty of 20 years’ imprisonment.
Time in custody
90․At the time of sentence today (24 April 2024), the offender has spent 218 days in custody solely referrable to the current offending.
Comparable cases
91․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550 (Pham). 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). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the majority of the High Court stated in DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] (Kiefel CJ, Bell and Keane JJ):
[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.
92․The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
93․I was referred to five comparable cases by the prosecution. I pause to note that none of the five cases strictly speaking involved an offender charged with the same offence as the offender (reckless infliction of actual bodily harm). At the 10 April 2024 hearing, counsel for the prosecution explained that the charge of inflicting actual bodily harm were not often dealt with in the Supreme Court. I do note that the charge of assault occasioning bodily harm also carries 5 years’ imprisonment.
94․The first case referred to was R v Roberts [2020] ACTSC 296 (Roberts). In Roberts, the offender had pleaded guilty to three counts of assault occasioning actual bodily harm, involving “jugging” three fellow inmates at the AMC using boiled water mixed with jam and sugar, as well as a fourth count involving stabbing a fellow inmate with a shiv / improvised knife: at [6]. The offender was 20 years old at the time of the offending, and his childhood was “marred by exposure to violence and drug abuse”: Roberts at [10], [13]. As noted by the prosecution, Burns J found that while the offender’s attitude and approach to rehabilitation has seen a significant improvement, his prospect remained guarded: Roberts at [15]. The prosecution submitted that the offender also had a “significant” criminal history, and highlighted how Burns J found that the offending is in the “mid-range” of objective seriousness: see Roberts at [9]-[10].
95․For the three jugging charges, Burns J sentenced the offender to 13 months’, 12 months’ and 8 months’ imprisonment respectively (after discounts for pleas of guilty): Roberts at [18]-[20]. As accepted by the prosecution in that case, the sentences were served largely concurrently with one another, with the second and third being subsumed within the first (13 months’) sentence. Both counsel placed some considerable emphasis on this particular case in submissions.
96․The second case is R v Winters [2019] ACTSC 245 (Winters). Winters involved a count of aggravated armed robbery of an IGA supermarket and a count of assault occasioning bodily harm to another inmate: see Winters at [4]-[5]. In relation to the assault occasioning bodily harm charge, the victim was punched 15-20 times with closed fists in the head by the offender. The victim fell to the ground, and the offender proceeded to kick the victim in the face and ribs a number of times, as well as stomping on the victim’s head about two times: see at [5].
97․I was the sentencing judge in Winters, and I sentenced the offender to 15 months’ imprisonment (after a 25% discount for a plea of guilty), to be served partly concurrently (a period between 1 January 2021 and 31 March 2021) with the sentence for aggravated robbery: Winters at [63](b)-(c). The offender was 20 years old, with a history of childhood physical abuse and exposure to substance use: Winters at [13]. I did not accord significant weight to remorse: Winters at [25]. The offender’s prospect of rehabilitation, as noted by the prosecution, was also guarded although I acknowledged and took into account offender’s completion of the AMC’s Solaris Therapeutic Community program: Winters at [51].
98․The third case, DPP v Featherstone [2022] ACTSC 307 (Featherstone), involved an assault occasioning actual bodily harm to another prisoner. Accompanied by four other prisoners, the offender cut the victim with an improvised knife. The offender then “stomped on the victim and continued the assault with the knife”, with the assault also including kicks to the face and stomach: Featherstone at [8]. This incident also involved other offences, including assaults to corrections officer (telling the officers to “f-off”) (see Featherstone at [9]) as well a transfer charge of possessing a prohibited item (a knife): Featherstone at [9], [11]. The offender was also charged with detaining another prisoner while threatening to kill him if corrections officer approach: Featherstone at [12]-[13]. The victim was only released after about two hours when he expressed interest to convert to the offender’s religion: see Featherstone at [15].
99․Elkaim J adopted the previous finding by Mossop J that the offender is of Aboriginal descent and suffered from serious mental health problems: see Featherstone at [17]. His Honour assessed the assault occasioning bodily harm (taken alongside the threats to the corrections officer to “f-off” and possession of a prohibited item) as “being about medium” in terms of objective seriousness: Featherstone at [32]. Ultimately, his Honour sentenced the offender two years and nine-months’ imprisonment for the assault occasioning bodily harm: Featherstone at [41](b).
100․His Honour also directed that the sentence be served partly concurrently and partly consecutively with an existing sentence under ss 72(3) and (4) of the Sentencing Act to avoid an “overwhelmingly long sentence”: Featherstone at [35]-[36].
101․The fourth case referred to was R v Newman; R v Reid [2016] ACTSC 102 (Newman). The offenders were members of the Rebels outlaw motorcycle gang (alongside a co-offender, Mr Ngata): Newman at [5]. Both offenders were 26 years old at the time of the offence: Newman at [27], [37] The offenders had assaulted a member of a rival gang, the Finks, as part of a plan to demand the relinquishment of jackets bearing the Finks’ insignia (including by force): Newman at [6]. The offender Mr Newman had grabbed and punched the face of the victim as the group confronted the victim in Westfield Belconnen. While Mr Reid did not personally cause injury to the victim, Murrell CJ found that he was part of the joint criminal enterprise: Newman at [8]-[9].
102․Murrell CJ found that the offending there was “objectively very serious”: Newman at [13]. As noted by the prosecution, Murrell CJ found that both showed limited insight to their behaviour: Newman at [34], [43]. However, her Honour found that Mr Newman’s prospects of rehabilitation were higher than Mr Reid’s due to “protective factors that support a positive lifestyle”, such as strong family support and stable employment: Newman at [34], [43].
103․Murrell CJ sentenced the two offenders to an intensive correction order (ICO) for a period of 16 months (Newman) and 20 months (Reid) respectively: Newman at [54], [61]. The ICO also contained a community service and a non-association condition.
104․Finally, in the case of R v Potts [2018] ACTSC 299 (Potts) the offending occurred at the AMC. The offender was found guilty after a jury trial of, among other things, assault occasioning bodily harm to a corrections officer: Potts at [1](c). The offender had “psychotic symptoms” after using the drug “ice” on 15 January 2017: Potts at [2]-[3]. The officer was struck in the face as he alongside another officer entered the cell to help the offender’s cellmate, who was being attacked by the offender: Potts at [7]-[10]. The officer suffered minor facial lacerations, and Murrell CJ found the offending to be objectively serious: Potts at [14], [17].
105․The offender in Potts had “spent much of his adult life in custody, primarily offences of dishonesty” but also with violent offending being prominent in his criminal history: Potts at [19]. The offender was remorseful for his conduct, and Murrell CJ was satisfied that the “penny has dropped” for the offender when it comes to rehabilitation: Potts at [36], [38]. The offender was granted parole from 4 December 2017 but remained detained due to his offending: Potts at [25]. Upon release, the offender has also expressed interest to enter a residential rehabilitation program: Potts at [37].
106․Murrell CJ sentenced the offender to 18 months’ imprisonment for the assault occasioning actual bodily harm charge. Her Honour found that there were “special circumstances” that justify directing that the sentence be served partly concurrent rather than entirely consecutive under s 72(3), as the offending was “part of the same incident and were virtually contemporaneous”: Potts at [46].
107․It is important to emphasise at this juncture that individual sentences are not precedents: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [57]-[58] and Pham at [29], see also Murray v IA [2020] ACTSC 288 at [29]-[30] (Mossop J). Further, previous cases do not establish a range as such: see Hili at [54].
Application of the Verdins, De La Rosa, and Engert principles
108․In R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins); the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant for sentencing (at [32]):
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both [citing Payne v The Queen [2002] WASCA 186; 131 A Crim R 432 at [43]].
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
109․In DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] (De La Rosa), the New South Wales Court of Criminal Appeal set out similar relevant principles.
110․In R v Engert (1995) 84 A Crim R 67 (Engert), Gleeson CJ observed (at 68):
… in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
111․As discussed above at [57]-[58], counsel for the offender did not seek to rely on the offender’s mental health in relation to reducing the offender’s moral culpability concerning the offending: Verdins at [32](1); De La Rosa at [177]. Counsel also properly conceded that, while the offender’s mental health issues may mean that the offender is not an appropriate vehicle for general deterrence, there is a countervailing issue in this specific case: see Engert. In particular, concerning mental health and Verdins, counsel for the offender conceded that considerations of specific deterrence, on the facts of this case, may to a large extent cancel out the issue of not being an appropriate vehicle for general deterrence on the basis of the authorities: see Engert.
Statutory and other relevant considerations
112․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 the relevant matters above in detail.
113․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.
114․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.
115․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it is clear that prison time is called for particularly in light of the serious offending, that I am sentencing for, which was committed while in custody at the AMC.
Rehabilitation
116․I note the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] concerning the importance of rehabilitation:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
117․Where rehabilitation can be achieved, it is important to both the community and the offender. It is important to the community that offenders avoid the revolving door of prison; that prisoners are not committing further offences once released into the community. The public interest is served by rehabilitating offenders. Further, it is important to note that rehabilitation courses and employment training for prisoners whether on remand or serving a sentence should be provided in prisons as a priority. Obviously, this costs money. Nevertheless, not doing so costs more. Lack of rehabilitation results in further offending in the community and that is a greater cost to the community and to government. It is a false economy.
118․In oral submissions, the counsel for the offender highlighted that the offender had shown a “much improved attitude”, referring to the evidence of Officer Schneider given during cross-examination at trial that the offender is now a “model detainee”. Counsel also emphasised evidence of the offender’s improvement, which included a series of letters of support and certificates. I have referred to the letters of support and certificates above.
119․The submission on the part of the counsel for the offender was that the offender is someone who was poorly behaved in prison but then has “literally changed” and is now a model prisoner.
120․On the evidence, I note that the offender’s prospects for rehabilitation remain somewhat guarded in the community as opposed to in prison. Nevertheless, the prospects and potential for rehabilitation have certainly improved significantly on the basis of the evidence before me, and I take that into account.
General Deterrence
121․I note that as the Court of Appeal stated in Carberry, “general deterrence is a paramount consideration in relation to offences committed in prison, especially in the ACT because there is a single prison and a single, centrally located, court system”: at [85], citing Horan v O’Brien [2021] ACTSC 323 at [16] (Mossop J) (Horan). In this context, I further note my discussion of general deterrence, specific deterrence and rehabilitation above at [111] and [120]
Restorative Justice
122․I note that the offender has expressed a desire to “take accountability for the incident”, for her actions and to personally apologise to the victim in the offender’s letter to this court.
123․I made orders for the offender concerning restorative justice on 22 March 2024, although regrettably, it appears, the referral was not formally sent to the relevant authority until 3 April 2024. My chambers received a reply from the Restorative Justice Unit on 9 April 2024, which indicated that the offender’s referral is now currently on a wait list to be allocated to a convenor. The letter indicated that an adjournment of 18 weeks may be required should the Court await the results of the referral before the sentencing. The offender did not wish to wait further to be sentenced.
124․My chambers were also informed on 17 April 2024 that the offender has been assessed as eligible for restorative justice. The matter has been placed on a waitlist, and I understand that it will be allocated to a restorative justice convenor within 8-10 weeks. Nevertheless, sentencing must proceed at this point and so I will be sentencing today and taking into account the referral to restorative justice as a result of the offender’s expressed desire to apologise to the victim.
Non-parole period and concurrency
125․As foreshadowed above in [27], a primary issue in this case is how I should approach the question of a non-parole period and concurrency of sentence in light of the fact that the offending took place in custody. At the March hearing, I granted leave for the prosecution and the offender to file further submissions in relation to ss 64 and 72 of the Sentencing Act.
126․For my part, I consider the main issues that emerged from the parties’ submissions are:
(a)the implication of the offender potentially being released without any initial period of supervision in the community due to the operation of s 64 of the Sentencing Act should I impose a term of imprisonment; and
(b)in relation to imprisonment, whether I should depart from the “statutory default” set by s 72 of the Sentencing Act (see R v Rappel [2019] ACTCA 11 at [3], [23] (Rappel) in light of totality and other relevant sentencing considerations.
127․As noted in [3]-[4], the offender is currently serving an existing sentence (existing sentence) imposed on 22 February 2023 for the offending detailed in paragraph [2] of Krutsky, namely:
(a)For two offences of act endangering life contrary to s 27(3)(c) of the Crimes Act (CC2022/8955 and CC2022/8957) to 18 months’ imprisonment for each offence to be served concurrently, commencing on 8 September 2022 and concluding on 7 March 2024; and
(b)For the offence of damaging property contrary to s 403 of the Criminal Code (CC2022/8953), to 18 months’ imprisonment to commence on 8 September 2023 and conclude on 7 March 2025.
128․The offender’s tender bundle included a parole order dated 12 September 2023. The parole order stated that the offender is granted parole on 20 September 2023 and until the expiry of the existing sentence on 7 March 2025.
Section 64 and 72
129․The relevant provisions of ss 64 and 72 are, as at the date of the sentence, today:
64 Application—pt 5.2
(1) This part applies to the following:
(a) a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment;
(2) In this section:
excluded sentence of imprisonment means—
(a) a sentence of imprisonment that is fully suspended; or
(b) a sentence of imprisonment suspended under the custodial part of a drug and alcohol treatment order; or
(c) a sentence of imprisonment to be served by intensive correction; or
(d) a sentence of imprisonment imposed in default of payment of a fine; or
(e) a sentence of imprisonment imposed for an offence committed while in lawful custody; or
(f) a sentence of life imprisonment, other than a sentence—
(i) that was imposed by a court of a State or another Territory; and
(ii) in relation to which a parole order is registered under the Crimes (Sentence Administration) Act 2005, section 167 (Parole order transfer—registration); or
(g) a sentence of imprisonment imposed on a young offender.
fine—see the Crimes (Sentence Administration) Act 2005, section 116
…
72Concurrent and consecutive sentences—offences while in custody or unlawfully absent
(1) This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a) an offence committed while the offender was in lawful custody;
…
(2) In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3) The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(emphasis added)
130․It is clear that I will not be able to set a non-parole period for any sentence I impose for this offending, as the offending was committed in custody. The sentence is an “excluded sentence of imprisonment” under s 64(2)(e) of the Sentencing Act. The legislative intent to render parole unavailable for offending in custody is clear: see Biddle at [22].
131․Next to be considered is s 72(3) of the Sentencing Act. Counsel for the offender ultimately submitted that under s 72(3) that any sentence of imprisonment will be served wholly concurrently with the existing sentence served by the offender. Counsel for the offender clarified that by “wholly concurrent”, he meant to convey, that any sentence of imprisonment I impose should not go past the existing sentence. That is, the term of imprisonment should not go beyond 7 March 2025.
132․Counsel for the offender made further submissions:
(a)the offender is already “punished in a real sense” for the offending as the offender is detained when the offender would otherwise have been released last year on parole on 20 September 2023; and
(b)it is a sufficient reason to depart from the default of imposing a cumulative sentence if “the sentence would otherwise be too long to achieve the relevant purposes of sentencing”: citing R v Gordon [2022] ACTCA 48 at [23].
133․In my view, these submissions are soundly based on the evidence before me and the cases discussed below.
134․Decisions were referred to by counsel, including:
(a)R v Collier [2022] ACTSC 18 (Collier);
(b)Horan;
(c)R v Winters [2022] ACTSC 42 (Winters 2022); and
(d)DPP v Wickes [2023] ACTSC 296 (Wickes).
135․In Collier, the offender had pleaded guilty to recklessly inflicting grievous bodily harm: Collier at [1]. The offender was being held on remand at the AMC pending his sentence for various matters, and he assaulted another inmate who allegedly owed money to a third person: see Collier at [2], [4]. The offender was later sentenced to 2 years and one-month imprisonment by Magistrate Theakston on 2 September 2021, which would expire on 31 January 2023: Collier at [3]. The non-parole period for this offending was due to expire on 19 April 2022, but the parties agreed that due to the relevant legislation (particularly ss 64 and 72), “the offender has lost the ability to seek parole after 19 April”: see Collier at [3].
136․Both parties in Collier also agreed that the sentence to be imposed should commence on 1 February 2023, and that it should not include a non-parole period but may also be suspended after a particular period of time: Collier at [4]. This was eventually the course taken by his Honour:
20.I think an appropriate sentence is four years imprisonment which, after the reduction of 25%, is lowered to 3 years. I also think it appropriate to suspend the sentence after two years in order to give the offender some hope for rehabilitation. He should however be acutely aware that the legislature wishes people committing this type of offence in prison to be treated with little leniency. Public deterrence is also of course very relevant here.
137․In Horan, Mossop J set aside a sentence imposed for assault in custody as manifestly excessive: at [23]. As noted by the counsel for the offender, his Honour found that the sentence was so as it “extinguishes the potential for a grant of parole which existed”: at [23]. The offender in Horan was in custody for an earlier sentence until 18 February 2022, with a non-parole period expiring on 18 January 2021: see at [2]-[3]. However, due to the imposition of the sentence and the operation of s 118(2) of the Crimes (Sentence Administration) Act 2005, the offender “must remain in custody until 18 August 2022”: at [3]-[4].
138․Mossop J made relevant observations as to why the sentence was in his Honour’s view manifestly excessive. In particular, it was observed that s 72 while emphasising the need to deny leniency to persons who commit offences while in custody, does not exclude rehabilitation as a sentencing purpose. Section 72 does not deny a court the ability to structure a sentence in a way which allows for a period of supervision in the community. In context, the following was stated:
In my view, the sentence imposed was manifestly excessive. That results not from the term of imprisonment which itself was unduly lenient, but instead results from the relationship between that sentence and the existing sentence. That is because the imposition of the sentence in this way extinguishes the potential for a grant of parole which existed under the existing sentence. The imposition of such a sentence was contributed to by an apparent view that to allow a degree of concurrency would necessarily “thwart the intention of the legislature” as expressed in s 72 of the Crimes (Sentencing) Act…Given the exclusion of the provisions that allow the imposition of a non-parole period, the capacity to allow some concurrency between sentences in s 72 is one of the few tools available to achieve an appropriate overall sentence. While in cases involving the imposition of sentences for multiple offences, some of which are excluded offences, there is more opportunity to structure the order of sentences in a way that achieves an appropriate overall sentence, in a case like this where a single sentence is to be imposed upon an existing sentence, there is much less flexibility. Section 72 becomes a more important tool. As pointed out in R v Rappel [2019] ACTCA 11 at [23]–[24] , if concurrency is to be introduced it should only be done where there is a proper reason for departing from the statutory purpose embodied in s 72. However, the discretion exists and whether or not and the extent to which it is to be exercised will be dependent upon the particular circumstances of the case.
(emphasis added)
139․His Honour ultimately resentenced the offender to a period of 9 months, fully suspended upon the entry of a good behaviour order of 12 months: Horan at [32]-[33]. Further, his Honour also observed that, in his view, s 118(2) does not apply to a sentence of imprisonment that is fully suspended: Horan at [32].
140․In Winters 2022, Berman AJ was sentencing the offender in Winters for a further offence of arson committed when he was detained the AMC, with the offender also asking his Honour to take into account an offence of damaging property relating to damage the offender caused with wood and broom-head whilst the offender was in his external yard: see [8]. The offender was sentenced to 8 months imprisonment beginning on 1 April 2022, to be suspended after 4 months (1 August 2022) upon entering a good behaviour order of 2 years: Winters 2022 at [40](a)-(b).
141․Berman AJ made the following apposite observations on importance of the principles of totality and the importance of community supervision and the benefit to the community of such supervision:
31.The principle of totality is of long-standing and has been consistently applied in this jurisdiction, see for example NC v R [2017] ACTCA 31. The princip[le] is not to be ignored despite the default statutory position being that Mr Winters’ sentences are to be served consecutively. It is notable that there is no statutory requirement for “special circumstances” or “exceptional circumstances” before I am able to direct concurrency or partial concurrency. There is no such threshold to the circumstances which are such to justify departure from the norm of total accumulation. Had the legislature wished to make full or partial concurrency a rare outcome it would have required such a threshold. Further, had the legislature wished to exclude the principle of totality from being of application in cases of this kind it could clearly have said so. But it has not. Nothing in s 72 or R v Rappel prevents the principle of totality being taken into account in an appropriate case.
…
34.I turn now to the issue regarding the inability to impose a sentence containing a period of eligibility for parole. As I have mentioned, probably more than once, that is what s 64 of the Crimes (Sentencing) Act requires. Unless some other order is made, that would mean that Mr Winters is released back into the community without the benefit of him being supervised and subject to conditions. To put matters frankly, the absence of a period of conditional liberty where he is supervised by the correctional authorities makes it more likely that he will commit further offences. The main purpose of sentencing an offender is to protect the community from further harm. A parole period assists the offender’s rehabilitation so as to reduce the risk that he or she will commit further offences, and ensures the offender’s return to custody if conditions of parole are breached. The protection of the community is thus harder to achieve where a period of parole is absent, particularly where an offender is released after the expiry of a substantial sentence.
35.There are however, other sentencing options which I am able to use in an attempt to achieve the same objectives that parole is designed to achieve. In particular the option of suspending a sentence, either completely or partially, is open to me. A partially suspended sentence will ensure that the offender is punished for his offence, will assist in deterring other prisoners who may be tempted to set fire to materials in their cells, will help to maintaining good order and discipline within the prison system, and will also allow for a period during which Mr Winters may be released from custody on conditions.
36. What I have just said is consistent with the views expressed by Mossop J in Horan v O’Brien, where although he was speaking about s 72, his Honour refers to the 7 desirability of courts structuring sentences in a way which permits a period of supervision in the community.
(emphasis added)
142․As noted by the parties, the offender’s parole application in Winters 2022 was refused due to, among other factors, the offending in that case: see Winters 2022 at [37]. In light of this, Berman AJ moderated the offender’s sentence: see Winters 2022 at [38]. I note that unlike the offender in Winters 2022 the offender’s parole was granted and is currently in force.
143․Finally, in Wickes, I sentenced an offender to 6 months and 12 days’ imprisonment for attempting to pervert the course of justice by making false instructions to his solicitors in a bail application: Wickes at [7], [116](1). This sentence was to be served concurrently with the offender’s existing head sentence, to ensure that the sentence is “not crushing on the facts of this case” and to encourage “continuing rehabilitation on part of the offender”, as submitted by the prosecution in that case: see Wickes at [104]. The offender was also serving a term of imprisonment for separate offending, with a non-parole period ending on 22 August 2023: see Wickes at [30].
144․Initially, the prosecution submitted that there is no occasion to make an order under s 72(3). The prosecution appropriately altered its position somewhat in further written submissions, upon reviewing the approaches taken post-Biddle outlined in Collier and other cases discussed above at length. The prosecution properly agreed that there is “some force” in the offender’s submission that I could give a direction under s 72(3) of the Sentencing Act as the offender would benefit from a period of community supervision. I agree. That is quite clearly correct.
145․Nevertheless, the prosecution properly noted that the principle of totality “should not be applied so as to suggest the offender is receiving a discount for multiple offending”: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26](c), citing R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112] and R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [18]. I will, of course, not be applying the principle of totality in a way that suggests a discount for multiple offending.
146․The prosecution’s ultimate submission was in essence as follows: were I minded to order concurrency under s 72(3), the sentence could be served in such a manner; as on the current sentence the offender “now enjoys the benefit of parole”. In other words, in the sense that there should be time served in custody exclusively for this offending but that does not go beyond the expiry of the existing sentence in 7 March 2025 in light of the offender’s grant of parole. Any sentence of imprisonment the offender serve should therefore begin on or about 20 September 2023.
147․Counsel for the offender conceded that the policy behind ss 64 and 72 is to ensure that prisoners are deterred from offending while they are in custody by “ordinarily having their release delayed, should they be convicted of further offending in prison” (emphasis in original). Prisoners that offend in prison should “ordinarily” be subject to further effective punishment and not have their sentence “subsumed by their existing sentence”. I note however that in this case the offender has been granted parole on the current sentence being served and therefore effective punishment has indeed begun by the offender continuing to be in custody in relation to the matter for which I must sentence.
148․After considering the parties’ submissions, I am satisfied that this is an occasion to depart from the statutory norm imposed by s 72(3) in light of the fact that the time in custody since September has been referrable to the matter I am sentencing for: see Rappel at [24].
Sentence
149․Counsel for the offender made a submission that a sentence of one-year imprisonment, running from 20 September 2023 to 19 September 2024 would be too long. I am not persuaded of that submission on the facts of this case.
150․It may be observed that this case involves a sentencing exercise not without some level of complexity in light of the statutory limitations.
151․The sentence will be a sentence of imprisonment with no non-parole period. Nevertheless, the length of the sentence will allow for a period of approximately six-month supervision.
152․It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon her. Both the short and long-term consequences of being a victim of this offence must be acknowledged.
153․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 offence and subjective matters relevant to the offender.
154․In my view, the appropriate sentence for recklessly inflicting actual bodily harm in this case is 13 months of imprisonment, reduced by approximately 10% to 11 months and 21 days on account of the plea of guilty. The offence will be backdated to commence on 12 September 2023 to account for time already spent in custody and for considerations of totality: see Mill v The Queen (1988) 166 CLR 59, Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.
155․This, in my view, is the appropriate sentence taking into account the importance of the factors discussed above, and in particular the importance of punishment, totality, and supervision on parole until March 2025. This sentence allows for the appropriate punishment, rehabilitation, and supervision of the offender.
Orders
156․For these reasons, I make the following orders:
(1)On the charge of recklessly inflicting actual bodily harm (ALT CC2022/10976), the offender is convicted and sentenced to 11 months and 21 days’ imprisonment to commence on 12 September 2023 and expiring on 1 September 2024.
Addendum
157․For the benefit of all counsel in this jurisdiction, it is important to note the following amendment.
158․There has been an amendment concerning s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The amendment was passed by the Legislative Assembly on 10 April 2024.
159․The amendment was the result of s 8 of the Crimes Legislation Amendment Act 2024 (ACT) (the Amending Act), having been passed by the Legislative Assembly on 10 April 2024, the amendment was notified by Parliamentary Counsel on 19 April 2024 by way of notification statement.
160․I note that the amendment entered into force on 26 April 2024 in accordance with s 2(1) of the Amending Act. As at 26 April 2024, the amendment has come into force to omit the reference to “sentence of imprisonment imposed for an offence committed while in lawful custody” from the definition of “excluded sentence” in s 64(2).
161․I note that counsel for the prosecution stated at the hearing of 22 March 2024 that “the response that the [ACT DPP] has received is that there will be no amendment in this area” and that “there will be no proposal on the near horizon to amend this area”. This statement was in response to my referral to the possible need for reform of s 64(2)(e) in DPP v Wickes [2023] ACTSC 296 and Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42. Counsel for the offender did not cavil with this characterisation of no proposed by action by the legislature as referred to by the prosecution.
162․I sentenced the offender to 11 months and 21 days’ imprisonment on 24 April 2024. I note that the amendment, had it been in force on 24 April 2024, would in any event not have resulted in a different overall sentence. That is, taking into account the operation of ss 65 and 66 of the Sentencing Act on the specific facts and relevant matters in this case as a sentence was pronounced that was for a period of under 12 months.
| I certify that the preceding one-hundred and sixty-two [162] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 03 May 2024 |
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