JS v Dylan Robert Johnston - [2013] ACTSC 296

JS v DYLAN ROBERT JOHNSTON

[2013] ACTSC 296 (10 October 2013)

APPEAL AND NEW TRIAL – Appeal from sentence in Magistrates Court – manifest excess – assault occasioning actual bodily harm – whether sentence reveals manifest excess – a sentence is either manifestly excessive or it is not – whether sentence outside of range of sentences which are appropriate with respect to the particular offence and the particular offender – where intentional infliction of harm with a weapon – where sentence towards the lower end of the range of sentences which would be available

Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), s 33

Cooper v Corvisy No. 2 (2010) ACTSC 166
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) NSWCCA 194
Ellis (1993) 68 A Crim R 449
Hawkins v Hawkins (2009) ACTSC 148
House v The King (1936) 55 CLR 499
Lani v Reynolds (2013) ACTSC 97
R v Verdins (2007) 16 VR 269

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 61 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 10 October 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 61 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

JS
Appellant
v
DYLAN ROBERT JOHNSTON
Respondent

ORDER

Judge:   Burns J
Date:     10 October 2013
Place:     Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.
The sentences of the Magistrate are confirmed, with the sentence and Good Behavior Order imposed to date from 10 October 2013.

On 24 July 2013, a Magistrate convicted the appellant of one offence of assault occasioning actual bodily harm contrary to s 26 of the Crimes Act 1900 (ACT) and sentenced him to six months’ imprisonment. Her Honour fully suspended the sentence and ordered that the appellant comply with the terms of a Good Behaviour Order for a period of two years and complete 200 hours of community service within that two-year period. The appellant now appeals from the sentence imposed by the Magistrate.
The appellant pleaded not guilty to the charge in the Magistrates Court, but the offence was found proved by the Magistrate after a contested hearing. In these proceedings, the appellant does not challenge the finding of guilt which was made by the Magistrate.
The evidence established that the complainant and some of his friends and colleagues were present at Mooseheads nightclub in the early hours of 2 June 2012. They were in the basement level of the nightclub playing pool and drinking. Likewise, the appellant and two of his friends were present on the same level playing pool. The appellant had not consumed any alcohol in the hours leading up to this offence.
Shortly before 4 am, the complainant jumped on to the pool table being used by the appellant and some of his friends. He interrupted their game. The complainant was asked to get down from the table, which he did. He then became involved in a verbal altercation with one of the appellant’s friends, whom I will refer to as DM. Shortly afterwards, the appellant approached the complainant from behind and struck him with the thick end of a pool cue, which resulted in full thickness lacerations to the back of the complainant’s head. The complainant required medical treatment to the injuries he sustained.
In the course of the hearing before the Magistrate the appellant gave evidence that before he struck the complainant with the pool cue, he believed the complainant may have been armed and was about to attack DM. The Magistrate found that the complainant was intoxicated and that when he was arguing with DM that he said words to the effect of, “I kill people for a living.” The Magistrate rejected the appellant’s evidence that he had acted in defence of DM. The Magistrate accepted that the appellant had a genuine concern as to the escalating circumstances of events prior to him striking the complainant with the pool cue, but she was satisfied beyond reasonable doubt that the appellant did not believe on reasonable grounds that it was necessary for him to do what he did in order to defend DM or anyone else.
After hearing submissions on sentence and receiving evidence, the Magistrate passed sentence on 24 July this year. After referring briefly to the facts as found by her, the Magistrate noted that the assault had caused deep lacerations to the scalp of the complainant requiring initial stitching and then hospitalisation between 2 and 10 June 2012 whilst said complainant was investigated and observed in respect of the possibility of a haemorrhage on his brain. It appears, however, that no such haemorrhage was ever identified.
Her Honour referred to the circumstances of the offence and, in particular, the use of a weapon and the seriousness of the effects of the assault and concluded that the offence was above the midrange for an offence of its type. She noted that the appellant had a prior drink-driving conviction in 2010 but did not consider that to be of great relevance in sentencing him for the offence of assault occasioning actual bodily harm.
Her Honour also referred to the contents of a Pre-Sentence Report dated 22 July this year. She noted that the Report detailed the appellant’s transient and troubled youth in Ecuador, Malaysia and Indonesia before his final relocation to Australia. It detailed his fractured family situation and his early exposure to violence, both in the home and school. It further detailed his education to Year 12 with subsequent training in various locations. It reported the appellant’s desire to work in the field of aged care and also detailed his diagnosis of paranoid schizophrenia since 2011. Her Honour noted that the appellant had been subject to a number of admissions to the Psychiatric Services Unit and had been the subject of a Psychiatric Treatment Order on two occasions, most recently since 14 February 2013. He was being treated by way of Risperdal injections fortnightly.
Her Honour then noted that the author of the Pre-Sentence Report assessed the appellant as suitable to perform community service but as unsuitable for periodic detention because of his mental health issues. Her Honour took into account the contents of a letter by a Mr Maher from Personal Helpers and Mentors Program, who had been very closely involved with the appellant. Her Honour noted that that letter provided a detailed history of the appellant and that he was hoping to become an Australian citizen. It also stated that the appellant was keen to become an aged care worker.
A copy of the Psychiatric Treatment Order dated 14 February 2013 was placed before the Magistrate. The order did not specify the condition from which the appellant suffered, but her Honour noted that the appellant had consented to the order being made. I note at this point that there appears to have been no dispute before her Honour that the appellant suffered from a condition diagnosed as paranoid schizophrenia.
Her Honour then went on to consider the sentencing principles set out in the Crimes (Sentencing) Act 2005 (ACT). She took into account that the appellant was 28 years old, a person of reasonably good character, a person of difficult family background, of reasonable physical health and who suffered with a mental condition which was currently well treated by the use of medication. She also took into account the appellant’s exposure to violence in his life. She accepted that the behaviour of the complainant which led up to the assault constituted a form of provocation. She noted that the appellant had not demonstrated remorse by entering a plea of guilty, but she accepted that, in his discussions with the author of the Pre‑Sentence Report, the appellant had demonstrated insight into the effect of his offending on the complainant. She accepted that whilst there was some evidence of remorse, it was not unqualified.
The Magistrate specifically expressed that a significant matter for her consideration was the appellant’s mental state. She accepted on the basis the material before her that the appellant had been diagnosed with paranoid schizophrenia. She accepted that that was a severe mental illness. Her Honour then considered a number of authorities addressing the way in which mental illness is relevant to sentencing for criminal offences.
In particular, her Honour referred to the well-known case of R v Verdins (2007) 16 VR 269. Her Honour noted that in that case the Court of Appeal of Victoria stated that where mental illness is relied upon as mitigating a penalty for criminal offending the onus falls on the accused to demonstrate that there is a proper basis to moderate the need for specific or general deterrence.
Her Honour then noted that the Court of Appeal listed some of the ways in which impaired mental functioning may reduce a person’s moral culpability for criminal actions. These included whether or not the mental functioning impaired the offender’s ability to exercise appropriate judgment, impaired the offender’s ability to make calm and rational choices or to think clearly, made the person disinhibited, impaired the person’s ability to appreciate the wrongfulness of their conduct, skewered their intent to commit the offence, or contributed causally to the commission of the offence.
The Magistrate also referred to the decision of Refshauge J in Cooper v Corvisy No. 2 (2010) ACTSC 166 as to the manner in which proof of mental disability may be relevant in sentencing for criminal offending. Her Honour then went on to say, and I quote:
Without evidence from a psychiatrist, I have looked at what is known to me about the circumstances. Clearly, the appellant had been diagnosed with a mental illness at the time this offence occurred. He was receiving treatment at the time. There is nothing about the circumstances at the time to suggest that he was symptomatic. There is nothing to suggest that his behaviour was florid. He was playing a game of pool with friends in the early hours of the morning. He wasn’t apparently drunk or drug affected. There was nothing bizarre or unusual about his behaviour to suggest that he was at that time symptomatic.
The Magistrate later went on to say, and again I quote:
There is simply no evidence before me that the defendant’s then treated psychiatric condition caused or contributed to the commission of this crime. I’m certainly not prepared to infer nor do I think it would be fair to the mentally ill at large to infer that simply because someone suffers a mental illness they are therefore more likely to be violent. I do accept that the appellant’s heightened sensitivity to violence may have been relevant to his decision to act in the way that he did. But that’s different from inferring that his illness caused him to be violent.
The only material before me, then, which is relevant to whether a particular sentence would have unduly harsh effect upon the defendant because of his mental illness is the pre-sentence author’s conclusion that the appellant is not suitable for periodic detention because of his mental health condition. The author provides no reason for this, and I can infer nothing more from it than that it is the opinion of the author as to that particular sentencing disposition.
The Magistrate then went on to note that the appellant’s counsel had submitted that no conviction should be recorded for the offence because it may affect the appellant’s ability to work in aged care and his ability to become an Australian citizen. Her Honour noted effectively that there was no evidence before her as to how a conviction for that offence of assault occasioning actual bodily harm may affect the appellant in his stated desire to work in aged care. It appears that the same was true with respect to the affect a conviction may have upon his desire to become an Australian citizen. I note that it was entirely unrealistic to suggest that an offence of this nature should be dealt with on the basis of a non-conviction order.
The most significant driver with respect to any sentence imposed for a criminal offence is the objective seriousness of the offending. The subjective circumstances of the offender must always be taken into account. But they can never justify the imposition of a sentence which does not adequately reflect the objective seriousness of the offence. Her Honour then went on to say by way of conclusion, and I quote:
I have before me, then, a situation of a person who clearly suffers with a mental illness, although, thankfully, now one which appears to be well controlled through treatment. I do not find that the mental illness contributed to the commission of this offence, although I have made other observations about the appellant’s personal experience contributing, perhaps, to his decision-making.
I, therefore, conclude that this is an offence of violence which was intentionally committed and caused very significant injury to the person who was the subject of it, and that the appellant has some, but perhaps limited, insight and remorse as to his offending.
Violence of this type is a blight on this community. It is a lottery whether or not somebody is killed as a result of this kind of action. That’s a matter of general public knowledge now. It’s in the newspapers regularly that single punches in the wrong circumstances can lead even to death. This is a matter of wide knowledge and public concern, and that’s why general deterrence where there is no reason not to consider it is an important factor for me to take into account.
Her Honour then went on to impose the sentence which she did. I note that in the recent case of the Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) NSWCCA 194 the New South Wales Court of Appeal said at [177]:
Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:
·Where the state of the person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence.
·It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
·It may mean that a custodial sentence may weigh more heavily on that person because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.
·It may reduce or eliminate the significance of specific deterrence.
·Conversely, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
(Citations omitted)
The Court of Appeal went on to stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity, it may, nevertheless, be appropriate to moderate the need for general or specific deterrence.
The sole ground of appeal agitated by the appellant in these proceedings is that the sentence imposed by the Magistrate was manifestly excessive. The appellant accepts the principles concerning such an appeal as expressed in House v The King (1936) 55 CLR 499 and in Hawkins v Hawkins (2009) ACTSC 148. I adopt, with respect, the statement of Hunt CJ at common law in Ellis (1993) 68 A Crim R 449, and I quote:
What must be looked at is whether the challenge to sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
In his written submissions in support of this appeal, counsel for the appellant has referred to a number of subjective features of the appellant relevant to sentencing and, in particular, his mental illness and his history of exposure to violence. Counsel then submitted that after considering the subjective features of the appellant in conjunction with the sentencing process principles contained in s 33 of the Crimes (Sentencing) Act 2005 (ACT), the sentence imposed by the Magistrate was unreasonable and unfairly unjust and, as such, was manifestly excessive.
I note that in his written submissions counsel for the appellant also referred to it a number of comparable sentencing decisions. Whilst they are described as comparable, they differ in significant respects from the matter which is now before this court.
As I noted in the matter of Lani v Reynolds (2013) ACTSC 97, there is very little by way of argument that can be put in determining whether a sentence is manifestly excessive. The sentence is either manifestly excessive or it is not.
Some assistance may be obtained by looking at sentences which have been imposed with respect to offences of a similar nature. However, it is important to recognise that the question is not whether the sentence imposed is more severe than sentences that have been imposed with respect to other offenders. The question is also whether it has been demonstrated that the sentence which was imposed falls outside of the range of sentences which are appropriate with respect to the particular offence and the particular offender and, as such, could be described as being manifestly excessive.
I have formed the opinion that the appellant has not demonstrated that the sentence imposed by the Magistrate was manifestly excessive. In doing so, I take into account the fact that the offence involved the intentional infliction of violence, it involved the use of a weapon, being a pool cue which had been deliberately turned so that the particular end could be used as a weapon to strike the complainant, and that it resulted in deep lacerations to the complainant’s head, which required stitching and hospitalisation for a period of time for observation so as to rule out the possibility of any brain haemorrhage.
Whilst the Magistrate described the offence that was before her as being above the midrange, it is clear that her Honour, in fact, dealt with the offence as being towards the lower end of the range of offences of this nature. The sentence of six months’ imprisonment is a sentence which is towards the lower end of the range of sentences which would be available for such an offence. In my opinion, there is no justification for any suggestion that the sentence which was imposed was manifestly excessive. And, as such, the appeal will be dismissed.
The appropriate course would be to confirm the orders made by the Magistrate with the sentence to commence from today and the Good Behaviour Order also to date from today. I make those orders.
I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: October 2013

Counsel for the Appellant: Mr J Robertson

Solicitor for the Appellant: Legal Aid ACT

Counsel for the Respondent:  Mr M Reardon
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  10 October 2013
Date of Judgment:  10 October 2013