Director of Public Prosecutions v Lo
[2025] ACTSC 218
•28 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lo |
Citation: | [2025] ACTSC 218 |
Hearing Date: | 29 January 2025 |
Decision Date: | 28 May 2025 |
Before: | Loukas-Karlsson J |
Decision: | 1. For the offence of recklessly inflicting grievous bodily harm contrary to s 20(1) of the Crimes Act 1900 (ACT) (CAN2022/12177), the offender is convicted and sentenced to 15 months imprisonment that will commence on 28 May 2025 and expire on 27 August 2026. 2. The sentence of imprisonment imposed pursuant to order 1 is to be served by way of an Intensive Corrections Order subject to the core conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – Intensive Corrections Order – consideration of rehabilitation – consideration of application of Bugmy and Verdins principles |
Legislation Cited: | Crimes Act 1900 (ACT), s 20(1) Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33, 35(2) |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 DPP v Paff [2023] ACTSC 259 Henry v The Queen [2019] ACTCA 5 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 Millard v The Queen [2016] ACTCA 14 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ngata v The Queen [2020] ACTCA 18 R v Al-Harazi (No 7) [2017] ACTSC 350 R v Bandy [2018] ACTSC 261 R v Byrne [2013] ACTSC 246 R v Daniel (No 2) [2021] ACTSC 117 R v Elson [2020] ACTSC 264 R v Gordon [2021] ACTSC 283 R v Henry [2018] ACTSC 34 R v Kepaoa [2017] ACTSC 414 R v Lelikan (No 5) [2019] NSWSC 494 R v McBride [2017] ACTSC 102 R v McIver [2022] ACTSC 206 R v O’Brien [2022] ACTSC 86 R v Paredes Valdez [2022] ACTSC 126 R v Pham [2015] HCA 39; 256 CLR 550 R v Srna [2018] ACTSC 337 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Vardai [2020] ACTSC 297 R v Verdins [2007] VSCA 102; 16 VR 269 R v Williamson [2021] ACTSC 58 |
Parties: | Director of Public Prosecutions Fu Shuang Lo ( Offender) |
Representation: | Counsel E Wren ( DPP) N Deakes ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 119 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․On 16 May 2024, Fu Shuang Lo (the offender) pleaded guilty to the following offence:
(a)An offence of recklessly inflicting grievous bodily harm contrary to s 20(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 13 years imprisonment.
Agreed facts
2․The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.
3․In December 2022, the offender and the victim both worked at a restaurant in the ACT. At the time of the offending, the offender had worked at the restaurant for several years, having previously worked at another location of the restaurant. The victim was additionally a part owner of the restaurant.
4․On 12 December 2022, the offender was working at the restaurant shortly after the restaurant had opened for the day at 11.30am. The offender’s role was to cook food, while the victim prepared the ingredients.
5․At around 11.45am, a group of customers entered the restaurant and ordered food.
6․Shortly afterwards, there was an argument between the victim and the offender. The argument appears to have been caused by a miscommunication concerning the food order for the customers. I note the exact cause of this argument is not clear from the Statement of Facts.
7․This argument was initially verbal but quickly developed into a physical altercation when the victim pushed away the finger of the offender that was pointed at him, before hitting the left side of the offender’s face. In response, the offender threw pieces of food at the victim and punched him in the face with his right hand.
8․Then, the offender picked up a Chinese style stainless steel meat cleaver knife (approximately 30cm long) (knife) that was in the kitchen, and moved towards the victim with the knife in his hand. The offender then slashed the victim on the top of the left arm with the knife. The victim then used their hands to take hold of the offender’s knife holding hand. Using his free hand, the offender then grabbed a stainless-steel container and hit the victim on the head a number of times with it. As the altercation continued, the offender slashed the victim’s right hand with the knife, before the victim was able to successfully disarm the offender of the knife.
9․To prevent the victim from using the knife, the offender grabbed the victim’s wrist and bit the victim on the right arm, before punching the victim in the head several times.
10․As the offender and the victim continued to struggle with each other, the two of them crashed through the kitchen door into the dining area which was no doubt alarming for the would-be customers inside the restaurant. At this point, the victim was still holding the knife in his hand, with the offender still holding the wrist of the victim’s hand that was holding the knife.
11․Around this time, the waitress in the dining area heard the victim ask the offender to let go of his hand, so he could put the knife down, which he then did, before both men then returned to the kitchen.
12․A short time later, the victim emerged from the kitchen into the dining area and sat down to apply tissues to his injuries. Then, the offender was seen entering the dining area, placing knives on a dining table, before leaving through the front door. Shortly afterwards the victim sought medical assistance at a medical clinic, before being taken to Canberra Hospital by ambulance.
13․The offender was subsequently arrested.
14․The victim was assessed by ACT Ambulance Service at about 12.35pm, who observed the victim to have the following injuries:
(a)Lacerations to the left temple area;
(b)Two deep lacerations to his left shoulder;
(c)Defensive lacerations to the webbing on his right thumb; and
(d)A bite mark on his left tricep.
15․The offender suffered bruising, a grazed lip, and a loose tooth from the incident.
Victim Impact
16․While there is no Victim Impact Statement before the Court, the Court nevertheless acknowledges that the commission of this offence involving the knife caused the victim to suffer injury which required hospital treatment and would undoubtedly have been frightening.
Objective seriousness
17․An assessment of the objective seriousness of an offence has always been an essential part of the sentencing process. Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. See also: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29].
18․I discuss the submissions of the parties and my consequent findings concerning objective seriousness below.
19․It is well established that there are three considerations in assessing the objective seriousness of an offence of recklessly inflicting grievous bodily harm. First, the conduct of the offender in causing the injuries, second the injury that was inflicted and third, the degree of recklessness: see R v Kepaoa [2017] ACTSC 414 at [34], R v Byrne [2013] ACTSC 246 at [30], R v Paredes Valdez [2022] ACTSC 126 at [43], see also McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [37].
20․In respect of the conduct of the offender, the prosecution correctly submitted that while it was acknowledged, as it should be, that the victim hit the offender first, the offender responded in turn by punching the victim and then taking possession of the knife, being an instrument capable of inflicting serious harm. Further, the prosecution noted that it is inherent in the plea of guilty that the offender realised the prospect of inflicting serious injury to the victim in the altercation, which resulted in the laceration to the top of the victim’s left arm.
21․In this regard, the prosecution properly submitted that the offender escalated the situation, and contrasted this with the victim who, on the agreed facts, inflicted minimal force on the offender and whose subsequent actions were consistent with an attempt to avoid further injury.
22․In respect of the nature of the injury that was inflicted, the prosecution underlined that photographs demonstrate the size and depth of the lacerations. I have viewed the photographs.
23․The incident began with a relatively brief argument between the offender and the victim in the course of their employment which regrettably descended into the physical.
24․Counsel for the offender submitted that the offender exercised excessive self-defence. Further, I note that counsel for the offender submitted that the offender asked fellow employees to apply first aid and contact the ambulance.
25․In respect of the injuries suffered by the victim, counsel for the offender correctly in my view, submitted that the most serious injuries are the two lacerations to the victim’s left shoulder, which required surgery. Counsel for the offender properly submitted that while these injuries were not insignificant, the injuries were not life threatening. Importantly, there was no cavilling with the significant effect the offence would have had on the victim.
26․In respect of the circumstances of the offence, counsel for the offender properly submitted that the actions of the offender were excessive and therefore rose above the level of self-defence.
27․I accept the identifying features outlined by both the prosecution and counsel for the offender as set out above. I note the identifying features were not in dispute and I further underline that the offence occurred in circumstances of excessive self-defence.
Subjective matters
28․In evidence before me is an Intensive Corrections Order Assessment Report (ICOAR) dated January 2025 prepared for the offender.
Family background
29․The offender was born and raised in China and recounted a happy and supportive childhood. The offender reported that he had close relationships with his parents and siblings throughout his time in China. The offender reported that both his parents have passed.
30․The offender married his wife in 2011, the relationship is supportive and caring and they have a child together.
Education/Employment
31․The offender left China following the Tiananmen Square protests and military crackdown of 1989 and arrived by boat in Western Australia in 1992. Following his arrival, the offender was kept in an immigration detention centre for three years. He was granted a bridging visa in 1995. The report notes that after being granted this visa, the offender moved to Sydney and commenced working as a kitchenhand in a Chinese restaurant. The offender was identified by immigration officials to be working illegally in 2002 and was detained in immigration detention at Villawood in Sydney for a number of years.
32․Upon his release from immigration detention in 2007, the offender relocated to Canberra.
33․The offender reported that he was and is detrimentally affected by a language barrier limiting his employment options.
Financial Situation and Housing
34․The report noted that the offender acknowledged he has financial pressure arising from unemployment now for over two years. The offender reported he receives Centrelink Job Seeker payments. Further, the offender lives with his wife and child in a small ACT Housing home.
Health
35․The offender reported no past or current alcohol or drug concerns.
36․Importantly, the offender reported trauma arising from his experiences in immigration detention centres and spoke of the impact this has had on his mental health. He is currently prescribed the antipsychotic medication olanzapine, which assists him to sleep.
Attitude to Offence
37․The offender stated that after a change in management at the restaurant, he was the subject of workplace bullying by the victim. Further, the offender stated he had retaliated due to his built-up frustration resulting from bullying by the victim.
38․The report stated that the offender appeared to minimise his responsibility. Nevertheless, it was additionally emphasised that the offender was observed to become distressed when speaking of the offence and stated he felt guilty and was sorry he had hurt the victim. The offender expressed remorse for the victim’s family, as well as his own, acknowledging his actions had hurt more than just the victim alone. I accept that the offender has demonstrated remorse. I further discuss this issue at [57] to [59].
Report of the Forensic Psychologist
39․In evidence before me is the report of Ms Kocak (psychologist) dated 12 January 2025 following an assessment with the offender on 3 December 2024. Also present at the time of the assessment was a Cantonese interpreter and the offender’s wife.
40․It was noted that the offender attended school up to a secondary level and thereafter began working in a factory. Additionally, the offender became involved in the “student movement” in 1989 in China which resulted in his being detained as a political prisoner in China for approximately 3 months and subsequently losing his employment.
41․The offender initially arrived at Christmas Island before being held in immigration detention for three years as noted in the ICOAR. Subsequently the offender moved to live and work in Sydney. His application for asylum was rejected. As noted in the ICOAR, the offender was detained again in immigration detention for several years. In 2007, the offender was released on a humanitarian visa and then became an Australian citizen in 2009. He has worked in restaurants since that time.
42․The report noted that while in immigration detention the offender was held with detainees with violent and antisocial tendencies and therefore the offender felt in fear for his life.
43․In respect of the offender’s attitude to these offences, the psychologist noted that the offender stated that the offender and the victim had “mild disagreements” prior to the day of the offence. As to the day of the offence, the report relevantly noted the following:
On the day of the offence, [the offender] stated that a disagreement ensued about an order and [the victim] began swearing and insulting [the offender] (“fuck your mother”). He stated that [the victim] punched him and went to pick up a knife (or he thought [the victim] was going to pick up a knife) to which then [the offender] picked up a knife. He reported that he reacted quickly because [the victim] is physically larger and younger, and he believed he had to act in self-defence. He reported that his previous experiences had reinforced that if he didn’t defend himself or appeared ‘weak’ he would become a victim. He stated that he became anxious and panicked when [the victim] was verbally and physically aggressive towards him. [The offender] recalled that he felt great regret for his actions immediately afterwards, and knew he would have to accept the consequences for his actions.
44․The report noted that at the time of the assessment the offender’s mood was low, and he stated that he had been significantly preoccupied with the idea of being incarcerated. The offender further reported that he had significant anxiety and experienced flashbacks concerning the offence.
45․The report noted that the offender’s wife commented at the time of the assessment that the offender has always been someone who ‘learns slowly’ and someone who has few friends. However, the offender’s wife noted that since the offending, the offender has become ‘slower’, more socially distant and has had more disrupted sleep.
46․The report noted that the offender meets the diagnostic criteria for Post Traumatic Stress Disorder (PTSD). In respect of how this was germane to the commission of the offence, the report emphasised the following:
Based on the information available to me, it is my opinion that [the offender] was suffering from unresolved complex and chronic PTSD prior to the offence and that these symptoms impaired his ability to exercise appropriate judgement; make calm and rational choices, or to think clearly; had a disinhibiting effect; impaired his ability to appreciate the wrongfulness and seriousness of his conduct; obscured the intent to commit the offence; and causally contributed to the commission of the offence.
It is apparent that [the offender] had continued to experience recurring, intrusive thoughts and flashbacks of past traumatic events since his release from Villawood detention centre, often triggered by people who appear aggressive. These intrusive memories may have been overwhelming, resulting in difficulties with distinguishing between past and present threats. Based on [the offender]’s reports, on the day of the incident, he was feeling as though he was once again in a life-threatening situation. His reaction to the perceived threat was intense and automatic, driven by the physiological and psychological effects of prior familiar experiences. When the confrontation escalated and he felt cornered, [the offender] found it difficult to process the situation rationally, due to emotional detachment and an overwhelming sense of danger. [the offender]’s cognitive distortions of feeling chronically unsafe around others he perceives as aggressive, likely contributed to the perception that [the victim’s] actions could cause an imminent threat to his life. Hypervigilance often makes individuals feel tense and overly sensitive to perceived threats, even in relatively safe situations. During the altercation, [the offender]’s responses were likely triggered by the rapid escalation of the confrontation, leading to a knee-jerk reaction. The confrontation may have reactivated memories of previous traumatic experiences, leading [the offender] to act impulsively or disproportionately rather than taking measured action.
47․Further, the report recommends that the offender engage in trauma-focused cognitive-behavioural therapy in addressing the underlying PTSD. Additionally, as to the risk of re-offending, the report concluded that the risk of such re-offending is low.
48․In relation to the impact of full-time imprisonment on the offender, the psychologist expressed the following opinion:
Given [the offender]’s vulnerabilities including his age and mental health condition, these issues are likely to be augmented if he is incarcerated. Prison environments are noted to exacerbate existing mental health issues through isolation, increased substance use, increased risk of victimisation, poor behavioural management, and issues with reintegration back into the community. [The offender]’s traumatic experiences during previous detainment coupled with poor social skills, and limited English are likely to cause him significant issues in the prison environment…
…[Therapy], it would be best administered in a community psychology setting.
Submissions on subjective matters
49․Counsel for the offender properly submitted that the Court would have regard to the following matters. I accept the submissions concerning the following matters on my review of the evidence before me.
(a)That the offender is now 63 years old, is married and has a daughter aged approximately 6.
(b)The circumstances of the offender immigrating to Australia in 1992 by boat, in order to seek asylum after previously being detained as a political prisoner and dissident.
(c)The circumstances of the offender being in immigration detention for three years following his arrival in Australia, where he was held as a “high security” detainee.
(d)The circumstances of the offender being held at Villawood immigration detention centre for a further approximately four years.
(e)The diagnosis of the offender with PTSD as a result of his time in immigration detention, as set out in the psychologist’s report, and the impact of this on the offending.
50․At the sentence hearing on 29 January 2025, the prosecution properly accepted that the offender’s background regarding time in immigration detention is relevant. I agree on the evidence before me that this factor is relevant.
No Prior Criminal History
51․The offender has no prior criminal history. I accept that the offender is a person of prior good character.
References
52․In evidence before me, are three references that were tendered in support of the offender.
53․First, a signed reference under the hand of the offender’s wife includes the following:
I have known [the offender] for more than 13 year since we first met in China… We have been married and lived together for more than 11 years in Australia. We have a 4 [year] old daughter… who is attending pre-school this year. I was very shocked and couldn’t believe it when I picked up the phone, he said he would [be] in custody overnight on 12 December 2022. It was unforgettable day in my life. Since the next day was our daughter’s [4th] birthday… After that he had been charged [with] reckless [inflicting] grievous bodily harm…
Due to our fertility problem, I had to undergo more than 7 years IVF journey since married. During that time, my husband always accompanied [me] for blood works in the very early morning and surgeries, one of them he was absent. He gave me [full support] on everything he could. We were so grateful that we got our little miracle… [in] late 2018. He never left [our child] 24 hours since she was born. He did every [effort] to provide [a] good environment and care to her and me. Although sometimes he had hard time from work, he still [thought] [of] us first [and] [avoided] [quitting] [his] job and [losing] income. He has always been a trustworthy, responsible, and thoughtful person in our family. He even regularly helps our elderly neighbours buying bottles of water, and mulch/or heavy items for their gardens. Since his matter [has been] on social media, I have got lots of phone calls from his previous co-worker/friends, who asked me whether it was [true]. They couldn’t believe it was him. That was totally out of his character.
My husband has never been involved with any criminal matters and does not have any criminal record.
54․Second, a signed reference under the hand of one of the owners of the restaurant at which the offence took place includes the following:
I’m writing this for [the offender] in the capacity of his employer and as a friend.
This incident actually happened at my shop during trading time and I was not present as it was my day off. It should have been just another ordinary day for my staff doing their job while I wasn’t there.
It was a total shock to get the unimaginable call to inform me of what had happened and to rush there to try and understand what had taken place.
Once I have gathered all the information of the situation I was in complete disbelief…
[The offender] [has] been working for my business for 4 years and during this time we developed a great relationship as employee and employer and he is also now a friend. He has always been kind and nice to everyone working at the shop, even after this incident many neighbouring businesses couldn’t believe what [the offender] had done as this was very much out of character for him and we are convinced he [has] deep regrets and is remorseful for his actions.
Everyone at the shop is concerned [for] his court hearing… as we know that he is not a violent man. He works hard to provide for his family, he has a beautiful young daughter who is only 4 years old which he always mentions at work and show us videos of her doing everyday things, laughing and being a proud father.
I sincerely hope the very best for [the offender’s] sentencing and may there be mercy for him and his family.
55․Third, a signed reference under the hand of another one of the owners of the restaurant at which the offence took place includes the following:
I have known [the offender] for 5 years. During that time, he worked in my business…
He is a very hardworking person and usually the last person to leave the restaurant as he tries to complete all the tasks and get food prepared for the next day. He is also a family person. He often shares with us the latest photos and videos of his daughter after work.
I have known the [offender] to be a very peaceful person. And he has never been the type to resolve conflicts through violence. This is the first time in my five years of knowing him that he has been so rash. I have seen how [the offender] sincerely regrets having committed the [offence]. He was aware that he had done something wrong and that he was responsible for the consequences of his actions.
Despite what [the offender] has done, I am willing to provide this character reference. I truly believe the incident was out of character, and [the offender] is taking the right steps to make sure it won’t happen again.
56․I note the remorse expressed by the offender. I take the references and the offender’s expressed remorse into account on sentence.
Remorse
57․As noted above, there is evidence before me of the offender demonstrating remorse for the offending. I underline this alongside the Court’s assessment as to minimisation of responsibility referred to in the ICOAR.
58․Nevertheless, counsel for the offender properly and correctly, in my view, submitted that, on the evidence the offender is remorseful and contrite concerning the commission of the offence, and any resulting confusion that may arise concerning minimisation of responsibility lies in the nuanced legal question relating to the issue of excessive self-defence.
59․I accept, on the evidence before me, that the offender has clearly demonstrated remorse for his actions and I take this into account when considering the appropriate sentence for the offender in this case.
Intensive Corrections Order Assessment Report
60․The ICOAR concludes that the offender is suitable for an Intensive Corrections Order (ICO).
Assessment and Recommendation
61․The ICOAR notes that the offender was assessed at a low risk of general reoffending and suitable for a low level of supervision. The offender’s notable risk factors relate primarily to unemployment and mental health.
62․It is the considered opinion of the author of the ICOAR that the offender would benefit from engagement with a job network provider for training and employment opportunities, engagement with mental health support services, and referral for counselling or programs to manage emotional regulation and trauma. I accept that the offender’s risk of reoffending will be further addressed should he engage meaningfully with these interventions.
63․In my view, on the evidence, the offender should serve his sentence by way of an ICO.
Plea of guilty
64․Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the Court is required to consider the plea of guilty.
65․In this matter, the offender entered his plea of guilty between the Criminal Case Conference (CCC) and the date for trial.
66․Pursuant to s 35(2)(c) of the Sentencing Act, I note that the pleas were the subject of negotiations between the parties. In Blundell v The Queen [2019] ACTCA 34 at [12], the Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”.
67․In the offender’s case, there was a significant period of delay between the CCC and the plea of guilty such that the plea was entered six weeks prior to the scheduled start of the trial. At the sentence hearing, both counsel accepted that some part of the delay between the CCC and the plea was due to the conduct of counsel rather than the offender. Accordingly, I recognise the utilitarian value of the plea.
68․In this case, I consider a discount of approximately 15% to be appropriate.
Time in custody
69․The offender has spent two days in custody referable to this offence. I take this into account.
Comparable cases
70․It is accepted that, bare sentencing statistics provide limited assistance in the sentencing task: R v Pham [2015] HCA 39; 256 CLR 550, Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Relevantly, in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] the High Court stated as follows:
[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.
71․In R v Bandy [2018] ACTSC 261 (Bandy) at [77]-[79], I summarised a number of broadly relevant cases. A number of the cases considered involved so called ‘one-punch’ assaults. I referred in the case of Bandy to a lack of a sentencing pattern in the cases, other than the offence is of course, as it must be, treated “very seriously having regard to the necessarily grave consequences of the offender’s actions.”
72․Counsel for the offender referred to a number of further cases. Below, I set out brief summaries of a number of the cases referred to.
DPP v Paff [2023] ACTSC 259
73․In this case, the offender pleaded guilty to recklessly inflict grievous bodily harm after assaulting the victim, who was attempting to break up a fight in the early hours of the morning. The victim was punched to the left side of his head and lost consciousness for a short time after hitting his head on the pavement. Upon the victim gaining consciousness, the offender returned for a second time and kicked the victim once in the head. The victim suffered severe facial injuries which required surgery.
74․The offender presented himself to police after seeing a media release calling for information. In this case, I accepted that a 25% discount for the plea of guilty was appropriate.
75․Mr Paff was 24 at the time of sentencing. The sentence was for an ICO for 30 months with conditions including 300 hours of community service work.
R v Paredes Valdez [2022] ACTSC 126
76․In this case, the offender pleaded guilty to recklessly inflict grievous bodily harm. Relevantly, the offender punched the victim with a clenched right fist to his head, breaking his jaw and knocking him unconscious. The offender also pleaded guilty to a rolled-up count of common assault against a second victim.
77․The offence was alcohol related and the offender had a problem with alcohol. In evidence, the offender expressed remorse.
78․The offender was sentenced to an ICO for two years with conditions including 150 hours of community service work.
R v O’Brien [2022] ACTSC 86
79․In this case, the offender pleaded guilty to a charge of recklessly inflict grievous bodily harm, prior to committal.
80․The offending occurred at a hotel and in circumstances where the offender took offence to the victim being abusive and punched the victim. The victim fell to the ground where the offender continued to punch the victim. The victim’s left mandible (jaw) was broken and required the insertion of four screws and a plate. Several teeth were broken.
81․The offender had relocated to Sydney after the offence and lived with his sister, who had mental health issues, acting essentially as her carer. Justice Elkaim sentenced the offender to a suspended sentence for a period of nine months and two weeks, taking into account the 50 days the offender had spent in custody.
R v Daniel (No 2) [2021] ACTSC 117
82․The offender offered to plead guilty to the statutory alternative charge of cause grievous bodily harm (which was not accepted by the prosecution) and was ultimately found guilty of this offence following a judge alone trial. The offence carried a maximum penalty of five years imprisonment.
83․The offence occurred in the context of tension between two groups of people a licenced premises over the use of pool tables. The offender turned to the victim, grabbed the front of the victim’s shirt with his left hand, and punched the victim to the left side of his face and the throat area. The victim immediately fell backwards, unconscious. The victim suffered a severe traumatic brain injury and was hospitalised for 75 days.
84․The offender had no criminal history and was of prior good character. The offender was working full time as an electrician and assessed as being at a low risk of reoffending. I sentenced the offender to three years and six months imprisonment to be served by way of an ICO with an additional 500 hours of community service work.
R v Vardai [2020] ACTSC 297
85․In this case, an assault occurred during a verbal argument between two people under the influence of drugs and alcohol. The offender threw a punch which knocked the victim to the ground. The victim suffered the following injuries:
(a)Fracture of mandible (jaw) with involvement of the 38th and 48th dental alveolus (left and right lower wisdom teeth);
(b)Occipital scalp haematoma; and
(c)Concussion/middle traumatic brain injury.
86․The offender pleaded guilty to recklessly inflict grievous bodily harm. The offender had no criminal history, was in full time employment and without ongoing drug or alcohol use problems. Acting Justice Robinson sentenced the offender to 13 and a half months imprisonment to be served by way of ICO with 100 hours of community service work.
Sentencing cases involving the use of a knife
R v Williamson [2021] ACTSC 58
87․Elkaim J sentenced the offender, who entered a plea of guilty to a single count of unlawfully causing grievous bodily harm, on the basis of excessive self-defence. The offence occurred in circumstances where the offender used a knife in a scuffle with the victim, who suffered several lacerations to his abdomen.
88․The offender had a minimal criminal history, but the Court noted that the criminal record did include an offence involving violence. Ultimately, the offender was sentenced to 18 months imprisonment to be served by way of an ICO with core conditions.
89․Additionally, the prosecution referenced various cases that involved the use of a bladed weapon. In written submissions, the prosecution submitted that these cases were provided to the Court only to the extent that the cases are of assistance to the Court, however the prosecution did not submit that these cases are in truth, necessarily comparable cases (thereby highlighting the difference in subjective circumstances).
90․Below, I set out brief summaries of a number of the cases referred to.
R v McIver [2022] ACTSC 206
91․In this case, the offender used a bladed article to cut the victim’s head during an assault that occurred in custody. The victim sustained multiple wounds, including to his face, ear and hands.
92․The offender was sentenced in respect of other offences at the same time. The offender had an extensive criminal history, had experienced significant disadvantage during his formative years, and additionally had a substance abuse issue and mental health concerns.
93․In respect of the offence of recklessly inflicting grievous bodily harm, the offender was sentenced to a term of imprisonment of 3 years.
R v McBride [2017] ACTSC 102
94․In this case, the offender used a knife to threaten and stab the victim in the abdomen following an argument. The victim required admission to hospital to treat a collapsed lung. The offender pleaded guilty and received a discount of 20%. The offender had a significant criminal history including multiple breaches of suspended sentence orders and was assessed as having poor prospects of rehabilitation.
95․The offender was sentenced to a term of imprisonment of 3 years.
R v Henry [2018] ACTSC 34
96․In this case, the offender struck the victim with a sword after consuming a large amount of alcohol. The victim suffered significant injuries. The offender pleaded to recklessly inflict grievous bodily harm and received a discount of 20%.
97․The offender had no prior relevant history and was assessed as having reasonable prospects of rehabilitation. The offender was sentenced to 18 months imprisonment. An appeal by the sentenced offender (who claimed manifest excess in relation to the 15-month non-parole period) was dismissed by the Court of Appeal: Henry v The Queen [2019] ACTCA 5.
R v Gordon [2021] ACTSC 283
98․In this case, the offender used a bladed weapon fashioned from a toothbrush and razors to inflict an injury on another detainee in custody. The injury was occasioned to the victim’s face.
99․The offender had a substantial criminal history including offences of violence and additionally had a substance use disorder, personality disorder and ADHD. The offender pleaded guilty to recklessly inflict grievous bodily harm and was sentenced to a term of imprisonment of 2 years, 6 months. A prosecution appeal against sentence was dismissed.
Do the Bugmy principles apply in this case?
100․Counsel for the offender submitted that the offender’s upbringing, which was submitted to feature disadvantage and dysfunction, may gave rise to consideration of Bugmy principles: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). Submissions of the offender noted that the offender grew up ‘poor’ in a one room “shack”.
101․In this regard, counsel for the offender referred to the case of R v Lelikan (No 5) [2019] NSWSC 494 (Lelikan) in which McCallum J (as her Honour then was) applied Bugmy principles when considering the sentencing of a man of Turkish/Kurdish identity, who had spent much of his early life persecuted by reason of his ethnicity.
102․At the sentence hearing on 29 January 2025, there were extensive oral submissions in respect of whether the Bugmy principles were applicable in the case of the offender, on the evidence before me in this case.
103․The prosecution properly did not cavil with the proposition that the Bugmy principles were available to be considered in relation to offenders from backgrounds that had experienced substantial disadvantage or persecution in their early life, as was the case in Lelikan.
104․Nevertheless, the prosecution submitted that the Bugmy principles were not applicable in the offender’s case. The prosecution submitted that the political persecution faced by the offender through his involvement in the student movement and subsequent seeking of asylum in Australia, is distinct from the childhood deprivation of the offender as such. The prosecution emphasised that there is no evidence before the Court of childhood deprivation in the offender’s case.
105․I underscore that in this case the offender’s incarceration and associated PTSD diagnosis are relevant to a consideration of the principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). I discuss the application of the Verdins mental health principles below. There is not the evidence in this case concerning profound childhood deprivation as such, for the application of the Bugmy principles to be enlivened. While the Bugmy principles are not enlivened on the evidence, nevertheless, the Verdins principles are clearly enlivened in this offender’s case on the evidence and are further discussed below.
Application of Verdins principles
106․In Verdins the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant in 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 (Payne at 444, [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.
(emphasis added by this Court)
107․I note that in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [177], the New South Wales Court of Criminal Appeal set out the relevant principles in a similar vein additionally referring to countervailing considerations: see R v Engert (1995) 84 A Crim R 67.
108․Counsel for the prosecution properly and correctly in my view accepted the application of the Verdins principles in this matter.
109․It is well established that the mere existence of a mental impairment will not invariably reduce the sentence to be imposed: Millard v The Queen [2016] ACTCA 14 at [32]. Nevertheless, courts have made it clear that an offender’s mental condition may have a mitigating impact on the nature of the sentence imposed: R v Al-Harazi (No 7) [2017] ACTSC 350 at [119] and Ngata v The Queen [2020] ACTCA 18 at [18]-[20].
110․In the offender’s case, I accept that the offender’s PTSD reduces the moral culpability of the offender concerning the sentencing exercise.
Conclusion on the application of the relevant Verdins Principles
111․On the basis of the evidence and in particular the diagnosis of PTSD made in the psychologist’s report, I am satisfied that the offender’s moral culpability for the offence is reduced by reason of his mental condition. I accept that the offending is mitigated in the six ways identified in Verdins and I note in particular the significant adverse risk for the offender in serving his sentence by way of imprisonment.
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. Reference has been made to relevant matters in that regard and is discussed above.
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. I have taken these matters all into account in coming to the conclusion that a sentence of imprisonment to be served by way of ICO is the most suitable sentencing outcome for this offender in this case on the evidence.
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. The maximum sentence for this offence is 13 years.
115․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was properly submitted by counsel for the offender that a term of imprisonment could be served by way of ICO. I have accepted this submission and I consider that a term of imprisonment to be served by ICO to be the most appropriate sentencing outcome in this case. This is because a term of imprisonment reflects the seriousness of the offending involving a knife and the nature of the injuries.
116․Nevertheless, the term of imprisonment ought not to be served by way of full-time imprisonment but rather be served by way of ICO because of the following factors:
(a)The offender’s suitability for an ICO.
(b)The offender’s mental condition is mitigating and will require professional assistance during the period of the ICO.
(c)The offender’s remorse and rehabilitation are significant in this case.
(d)The offender’s family responsibilities.
(e)The offender has spent time in custody relevant to this offending (see [69]).
117․Rehabilitation is an important consideration in sentencing the offender having regard to the offender’s remorse, and previous good character. Rehabilitation is in the public interest as rehabilitation is the best guarantee of community protection: French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].
118․On the evidence, the offender’s prospects for rehabilitation are good and will be further assisted by the support of an ICO.
119․As I noted in R v Elson [2020] ACTSC 264 at [85], it must be underlined that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered in law, to be a ‘significant punishment, coming second only to a term of full-time imprisonment’: R v Srna [2018] ACTSC 337 at [13]. In my view it is the most appropriate sentencing result for the offender on all the evidence and on the basis I have outlined above at [117].
Sentence
120․The appropriate sentence for this offender and his commission of this offence is 18 months reduced by approximately 15% on account of the plea of guilty, being a sentence of imprisonment of 15 months to be served by way of ICO.
Orders
121․For these reasons the following orders are made:
1.For the offence of recklessly inflicting grievous bodily harm contrary to s 20(1) of the Crimes Act 1900 (ACT) (CAN2022/12177), the offender is convicted and sentenced to 15 months imprisonment that will commence on 28 May 2025 and expire on 27 August 2026.
2.The sentence of imprisonment imposed pursuant to order 1 is to be served by way of an Intensive Corrections Order subject to the core conditions.
| I certify that the preceding 121 numbered paragraphs are a true copy of the reasons for sentence of her Honour Justice Loukas-Karlsson Associate: Date: 28 May 2025 |
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