Director of Public Prosecutions v Saulo
[2024] ACTSC 193
•21 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Saulo |
Citation: | [2024] ACTSC 193 |
Hearing Date: | 31 May 2024 |
Decision Date: | 21 June 2024 |
Before: | McCallum CJ |
Decision: | (1) For the offence of recklessly inflicting grievous bodily harm, you are convicted. (2) I sentence you to a term of imprisonment for six years starting on 4 October 2023 and ending on 3 October 2029. (3) I fix a non-parole period of three years starting on 4 October 2023 and ending on 3 October 2026. The first date on which you will be eligible for parole will be 3 October 2026. (4) I order that you pay reparation in the sum of $7,311.25. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – reckless infliction of grievous bodily harm – continuation of an altercation at a nightclub – single punch – youthful offender –early guilty plea – where victim suffered life-altering injuries – where offender was serving an intensive correction order for a similar assault at the time of the offence |
Legislation Cited: | Crimes Act 1900 (ACT) s 20(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 19, 33(1)(a), 33(1)(za), 33(1)(h), 33(1)(j), 35, 35A, 65 |
Parties: | Director of Public Prosecutions ( Crown) Andrew Junior Apelu Saulo ( Offender) |
Representation: | Counsel E Bayliss ( DPP) N Deakes ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 4 of 2024 |
McCALLUM CJ:
Introduction
1․Andrew Junior Apelu Saulo pleaded guilty in the Magistrates Court to an offence of recklessly inflicting grievous bodily harm contrary to s 20(1) of the Crimes Act 1900 (ACT). He now stands to be sentenced for that offence. The maximum penalty for the offence is imprisonment for a period of 13 years. The maximum penalty, as is well-known, stands a yardstick to guide the Court as to the appropriate sentence.
2․The offender was on conditional liberty at the time the offence was committed. That is not relevant in the assessment of the objective seriousness of the offence but is recognised as an aggravating factor in the determination of the appropriate sentence.
3․The circumstances of the earlier offences were eerily similar to the present offending. In the earlier case, the offender was sentenced for two offences of assault occasioning actual bodily harm. He was sentenced to two relatively short periods of imprisonment but was ordered to serve those terms by intensive correction in the community. The intensive correction order is not liable to be cancelled, and the offender is not now liable to be re‑sentenced for those offences, because of the interpretation by this Court of the operation of s 65 of the Crimes (Sentencing) Act 2005 (ACT).
4․The offender was also subject to a good behaviour. In light of the sentence I propose to impose, it is inexpedient to take any further action in respect of the breach of the good behaviour order constituted by the offence.
5․It is necessary to consider the nature and circumstances of the present offence: s 33(1)(a) of the Crimes (Sentencing) Act.
6․The victim, Mr Harry Korres, was out celebrating a birthday party at 88mph nightclub in Hobart Place in central Canberra. At about 2:00 am, a male person (not the offender) brushed past the victim’s female friend as she was standing near the bar. She subsequently became aware that that man was staring at her, which made her feel uncomfortable. She asked the man to stop staring at her. The female then felt a group of people including the offender circling around her. The victim, Mr Korres, came closer to defend her and pushed the males who were part of the other man’s group back.
7․The victim was then pushed by the offender and lost his footing. The offender attempted to stomp on him while he was on the ground. There was further wrestling between the men, ultimately resulting in their both being expelled from the club. When expelled from the club, the victim and his female friend walked in one direction away from the group that included the offender. The offender’s group followed them “at pace”, as it was put in the submissions before me.
8․At this point, the female became the protector, standing between Mr Korres and the offender and his friends to discourage any further altercation. However, as she stepped forward to block one male, the offender opportunistically used the open gap between her and the victim to punch him with a left hook to the head.
9․The punch must have been one of considerable force. It caused Mr Korres to fall back and hit his head on the gutter. He became unconscious. The offender left the area, walking towards Marcus Clarke Street. Other members of his group continued trying to fight the unconscious victim but were held back by others. Emergency services were called and Mr Korres was taken to hospital with very serious injuries which I will return to describe.
10․Police attended but were unable to identify the assailants. On 3 October 2023, they issued a media release on social media with a photograph of the person they suspected was the person who had punched Mr Korres. The photograph depicted the offender. Shortly afterwards, he presented himself at City Police Station. He later made admissions to being the person who had punched Mr Korres. He pleaded guilty on 22 January 2024 in the Magistrates Court. My assessment based on those facts is that the offence was one of very considerable seriousness.
11․The offender has not offered any reparation to the victim: cf s 33(1)(h) of the Crimes (Sentencing) Act.
12․The offender pleaded guilty at what must be accepted to be the earliest opportunity. The Crimes (Sentencing) Act contemplates that the court will reduce any sentence of imprisonment when an offender pleads guilty: s 33(1)(j) and s 35 of the Act. That is an important sentencing principle. A guilty plea saves the victim the ordeal of going through a jury trial and it saves the court valuable time.
13․As I have noted, the offender also handed himself in to police promptly after seeing the photograph published by police on social media. The court has a discretion to allow a further reduction to the sentence on that account, in accordance with s 35A of the Crimes (Sentencing) Act. However, in considering any further reduction, the court must be mindful to ensure that the sentence ultimately imposed is a proper sentence reflecting the seriousness of the offence. In all the circumstances, I think to allow any additional discount for the assistance to the administration of justice comprised in the offender handing himself in would be inappropriate. Some reduction should be allowed for the plea in accordance with orthodox principle.
14․I am required to consider the circumstances of the offender. He had an unexceptional upbringing. There is before the court a pre‑sentence report dated 17 May 2024 which describes his migration to Australia from New Zealand with his family when he was eight years of age. He is one of four children born to his parents. He told the author of the report that he enjoyed a positive upbringing. At the completion of Year 12, he commenced a carpentry apprenticeship at the Canberra Institute of Technology. His parents moved to Melbourne while he was doing that apprenticeship and he remained in Canberra. He told the author of the report that he suffered a decline in his mental health at that time because he missed his family, but felt obliged to stay in Canberra to complete his apprenticeship.
15․The author of the pre‑sentence report expressed the opinion that the offender appears to have had a positive upbringing in a stable home environment, presenting with a number of protective factors including stable accommodation, supportive bonds with his family and no history of illicit substance use. Conversely, it is stated that, despite completing his formal education, the offender has a limited employment history and his finances are strained. The author also noted that the offender’s association with antisocial peers in the community remains of concern. Medical records show in March 2021 a presentation at hospital with a suspected episode of psychosis.
16․A separate report noted that the offender has been assessed as suitable for the imposition of an intensive correction order. In my assessment, however, it would not be appropriate to order that any sentence of imprisonment, which I do intend to impose, be served in that manner in the present case. I will return to explain my reasons for that conclusion.
17․The offender relied on two character references. I am not persuaded that I can put any significant weight on those. On the one hand, they confirm that the offender enjoys prosocial support within his family and through the church to which his family belongs. On the other hand, the descriptions of his character given by the authors of those references stand in stark contrast to the offending, both on the earlier occasion and the present offending. I can only conclude that the authors of those references have not seen the side of the offender that brings him before the court today.
18․The offender has shown some remorse. He wrote a letter of apology which was read at the proceedings on sentence before me. I note, however, that the offender wrote a similar letter when being sentenced for his prior matters, concluding with the words, “I can assure you that this act will never happen again”. It did.
19․Having regard to the language of the apology letter read in these proceedings compared with the letter written on the previous occasion, I have some reservations as to the depth of the offender’s remorse or his understanding of the seriousness of his conduct. However, it is appropriate to afford some weight to that factor, particularly having regard to his account of reflecting regularly on the seriousness of what he has done whilst he has been in custody.
20․I am required to have regard to current sentencing practice: s 33(1)(za) of the Crimes (Sentencing) Act. Both parties identified a series of cases. However, I confess I found none of them helpful. None was a case of the seriousness of the present case. There are cases in which intensive correction orders have been made for an offence of recklessly inflicting grievous bodily harm in this jurisdiction, but a careful consideration of the circumstances of those cases reveals that they were not so serious as the conduct of the present offender.
21․I also considered some of the authorities in New South Wales for offences of recklessly inflicting grievous bodily harm. Those authorities also, however, I found unhelpful. A significant difference between that jurisdiction and this is that the offence there carries a maximum penalty of 10 years, and so the comparison is unhelpful.
22․I turn to consider the purposes of sentencing and to weigh the significance of the competing purposes set out in s 7 of the Crimes (Sentencing) Act.
23․The most significant factor in favour of the offender is his youth. He is 21 years of age. The principles for sentencing young offenders are well known. It is axiomatic that the court must place significant weight on rehabilitation in the case of young offenders, where that is appropriate having regard to competing factors. That is a difficult exercise because of the often significant competing factors in the case of offending by young persons whose conduct, as this case shows, is often reckless with disastrous consequences.
24․In my view, in the present case, I must give considerable weight to the protection of the community, denunciation of the offender’s conduct and the recognition of the harm done to the victims. The offender submitted that it would be appropriate for the court to permit him to serve any sentence by intensive correction in the community. As already noted, I do not think that would appropriately reflect the seriousness of the offence.
25․I return in that context to consider the injuries and their effect on the victim and his family. It is appropriate to record those considerations in their words.
26․A victim impact statement was provided to the court by the wife of the victim. She is a mother of four girls and describes herself as a loving wife to her husband, the victim, Mr Korres. She states:
We were a very quiet and happy family. This incident has greatly impacted all of us.
27․She describes the circumstances in which she learned that her husband was in hospital having been brutally assaulted. She describes how difficult it was telling her children what had happened to their father and answering their questions as to whether he would be okay. She continues:
This nightmare has turned our lives upside-down. From being a very close and happy family, spending time together, now we are constantly under stress and worried. I am constantly with my husband, looking after him, as he cannot drive and I take him to all of his appointments. I had to stop work and used all my personal leave. As a result, I have lost my full-time position, and this is very upsetting as I cannot support our family and feel powerless increasing the financial strain on the family.
This has put an enormous strain on our marriage. He is a different person, and not the happy and loving, affectionate man he used to be. He is very depressed and does not like to be in crowded places with a lot of people. Sometimes I feel helpless as I cannot fix his injuries and bring back my old husband.
I have lost my inner self and the happy and loving person I used to be. I have been trying to stay strong in this whole ordeal, but it is very hard to do. My husband has to endure these permanent injuries for the rest of his life, and I wish this had never happened to him. Our lives will never be the same.
28․The victim, Harry Korres, also provided a victim impact statement. He described how the events of 24 September 2023 have changed his life and his family’s forever, stating:
A quiet and enjoyable birthday party resulted in me getting horrifically injured by an unprovoked attack.
29․He then described his injuries. I pause to note that his description is proved and indeed explained in considerable detail in a medical report before the court which I have considered. I prefer, however, to record the impact of the injuries in the victim’s own words. He says he suffered a broken skull resulting in bleeding to the brain and irreversible brain injury to the back and frontal lobe of the brain. This has resulted in continual headaches, pain, loss of concentration, memory, and balance:
It has been very hard to recover, and I am not myself anymore.
Facial palsy to the left side of my face. The first three months after the injury, I was unable to drink water and eat any food properly. Also, I was unable to fully close my left eye, and had to sleep with my left eye open.
30․The medical report indicates that at the time the report was prepared the victim was still required to tape his eye closed while he was sleeping.
31․The victim impact statement continues:
Loss of four lower front teeth. I was unable to eat solid food for four months, and still struggled to adapt. This has resulted in wearing dentures to replace the four lower teeth.
32․I note that that injury is supported by a dental report which, together with some invoices provided to the court, describes the lengthy and painful dental treatment the victim has had to undergo.
33․The victim also explains how, not having any sense of smell, there is a risk of his eating spoiled food, and says that that has already happened once, resulting in a vomiting episode. He states:
Loss of hearing in my left ear. I have constant ringing in my left ear (tinnitus), and struggle to hear others and appropriately concentrate … I have lost the senses of smell/taste and broken nose. According to doctors’ advice only 5% of individuals with this type of injury regain their smell and taste. I love cooking and the taste of food; however, I am unable to cook as I cannot taste or smell any food.
34․He describes continual headaches and sleepless nights, and his inability to drive. He concludes:
I used to be an energetic, healthy individual that loved to socialise, help others, provide for my family and the community. I had to endure countless doctor visits, CT and MRI scans, and financial stress. These injuries are considered permanent incapacities by the doctors. I am a broken man, and my life has changed forever.
35․The victim goes on to describe his sorrow at not being able to return to the job in which he previously worked and the fact that he is now housebound and feels he is a burden on the family.
36․The significant impact of this offence on the victim must be an important consideration in the present sentencing exercise. Both parties acknowledged that the threshold in s 10 of the Crimes (Sentencing) Act has been crossed. That section requires the court to consider all possible alternatives before imposing a sentence of imprisonment. As I have indicated, I have received little assistance from comparable cases and am left to determine the appropriate sentence by reference to those two very compelling factors, that is, the seriousness of the injuries and the fact that the offence was committed while the offender was at conditional liberty.
37․Before turning to the sentence I will impose, I indicate that I will make a reparation order pursuant to s 19 of the Crimes (Sentencing) Act. The victim provided to the DPP receipts disclosing the amounts that have been spent on dental care. In my view, it is appropriate to order the offender to pay that amount. There may be little basis for thinking he will be able to pay that amount. However, on balance, I have concluded that it is an appropriate order to make, to recognise and provide whatever reparation can be provided for some of the financial impact of this offence on the victim and his family.
38․Ultimately, the sentence must be determined by reference to the maximum penalty, the seriousness of the offence and the tragic impact on the victim. These must be foremost considerations in the sentencing exercise. I have determined that, but for the plea of guilty, the starting point for this sentence should be a term of imprisonment for eight years. That sentence will be reduced to six years to reflect the benefit of the plea of guilty, reflecting a reduction of 25% as the plea was entered at the earliest opportunity.
39․To reflect the interests of rehabilitation for a young man, I propose to set the non-parole period at 50% of the sentence. That is unusually low but it is appropriate having regard to the offender’s youth. For that reason, the non-parole period will be a period of three years.
Orders
40․Andrew Saulo, please stand.
(1)For the offence of recklessly inflicting grievous bodily harm, you are convicted.
(2)I sentence you to a term of imprisonment for six years starting on 4 October 2023 and ending on 3 October 2029.
(3)I fix a non-parole period of three years starting on 4 October 2023 and ending on 3 October 2026. The first date on which you will be eligible for parole will be 3 October 2026.
(4)I order that you pay reparation in the sum of $7,311.25.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |
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