O'Shaughnessy v Fleming
[2023] ACTMC 19
•9 June 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | O’Shaughnessy v Fleming | |
| Citation: | [2023] ACTMC 19 | |
| Hearing Date(s): | 18 May 2023 | |
| DecisionDate: | 9 June 2023 | |
| Before: | Special Magistrate Richter | |
| Decision: | Imprisonment – 3 months, 18 days – wholly suspended. | |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – ‘one punch’ assault – escape custody – young offender - | |
Legislation Cited: |
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| Cases Cited: | R v Duffy & Ors [2014] ACTCA 53 BP v R [2010] NSWCCA 159 R v Tran [1999] NSWCCA 109 (Tran) DPP v Neethling[2009] VSCA 116 R v Elliott[2006] NSWCCA 305 | |
| Parties: | Cooper Reed O’Shaughnessy (Informant) | |
| Representation: | Counsel | |
| Solicitors | ||
| File Number(s): | CC 2023/858 CC 2023/859 |
SPECIAL MAGISTRATE RICHTER:
The defendant is before the court having pleaded guilty to the following charges:
CC 858/2023 Assault occasioning actual bodily harm.
Crimes Act 1996 (ACT) section 24(1):
That he in the Australian Capital Territory, on 21 January 2023 did assault Anthony Robertson and thereby occasioned to him actual bodily harm.
Maximum penalty 5 years imprisonment.
CC 859/2023 Escape from custody.
Crimes Act (ACT) section 160
That he in the Australian Capital Territory, on 21 January 2023 being a person who was in lawful custody in respect of an offence under a law of the Territory did escape from that custody.
Maximum penalty 5 years imprisonment or $16,000.
I note the jurisdictional maximum penalty in this Court is $15,000 and/or 5 years imprisonment by operation of the Crimes Act (ACT) section 375.
The defendant entered his pleas of guilty on his third appearance. I accept that a plea to the charge of assault occasioning actual bodily harm was intimated early on and that the delay in entering his plea is largely owing to the representations that were made in relation to 859/2023 the charge of escape custody.
The guilty pleas in this case still provide the court and the community with a utilitarian benefit. Those pleas were entered very early, and I consider that a discount of 20% on any sentence I give is appropriate.
Circumstances of offence
At about 2.45 AM on 21 January 2023, the defendant was outside of Mooseheads nightclub. At that time a large group of males spilled out onto the road from the nightclub.
What happened thereafter is captured on CCTV footage which was tendered by the prosecution.
In the video a couple (male and female) are seen walking across London circuit. Roughly parallel to them and to their left is another male walking across the road and further the victim in this matter can also be seen crossing the road in vicinity of the other people.
I accept that the victim had told police he was “starting it up at the other couple of boys” before this incident occurred. However, there is no evidence of any physical violence by the victim toward any person, nor is there any evidence of violence toward the two people crossing the road.
What is next seen in the CCTV is the defendant moving quickly toward where the victim was crossing the road. The defendant then punches the victim once to the face. That punch knocks the victim to the ground.
The defendant made no attempt to assist the victim but left the scene. He was later located by police and identified as the assailant by a bystander. On being arrested by a police officer he broke free and ran off. The ensuing foot chase covers several hundred metres and lasts for only three or four minutes.
The defendant’s action in punching the victim was, to say the least, cowardly.
Assault occasioning actual bodily harm
Whilst I accept that the interaction between the defendant and the victim commenced with words being spoken by the victim, what followed thereafter is wholly inexcusable. There is no suggestion that the victim was any threat to any person at the time the defendant ran up to him and punched him in the face knocking him to the ground.
The CCTV footage is appalling to watch and shows that this is the type of behaviour that has been the subject of commentary in various courts in recent years.
There are many cases where courts have dealt with what is colloquially known as “one punch” attacks, but no clear pattern emerges from those sentences other than that the offence is treated very seriously having regard to the necessarily grave consequences and/or potential consequences of the offender’s action.
The Supreme Court of the ACT has stated that there is clearly a significant need for general deterrence of a violent conduct by young men occurring in or near licensed drinking establishments.
In this case, the defendant is fortunate that no greater harm was caused to the victim than is alleged by the prosecution. He fell to the ground and he was close to the raised median strip when he did so. I do not intend to punish the defendant for what could have happened, (as that would be an error of law) but I consider it important that he understands the gravity of his actions.
The concept of ‘excessive self-defence’ was raised as an issue in mitigation of this offence. I reject that assertion. For self-defence to be excessive, a right to self-defence must arise on the facts. No such right to self-defence arises here.
I accept that there was some provocation in the words used by the victim prior to the defendant punching him, but this is of very little weight given what can be clearly seen on the CCTV footage.
In his victim impact statement, the victim describes being cautious on going out to the city or out in general. He describes having had to take a week and half off work because of the injury he received.
Escape custody
I accept that the defendant’s action of running away from the police was an instinctive reaction to the situation in which he found himself, and was foolish to say the least.
As can be seen on the body worn camera footage from the police, he surrendered quite quickly when caught by the police.
Subjective factors
At the time of the offence the defendant was 18 years two months and one week old. He comes before this court with no prior history of any type of criminal behaviour. After his arrest he was held in custody for a approximately 3 hours prior to being granted police bail.
He completed year 12 in 2022 and now works as an apprentice carpenter. He resides with his mother and her partner. They were both in court for his sentencing and the support he has from his family is obvious.
I was provided with a series of references to this court from his;
1. mother and stepfather,
2. aunt,
3. employer.
Each of those references paints a picture of a young man who is held in high regard by all who know him, and who is caring and considerate in his relationships with others. He is described as being a hard worker, a great listener and a valued member of the team where he is employed.
I have had the benefit of a court duty report dated 31 May 2023. In the report the defendant denies being a regular consumer of alcohol and has advised the report writer that he has never been an illicit substance user. I have no difficulty with that proposition having seen him before me and knowing that the industry in which he is employed in requires drug testing on building sites.
The report writer describes him as verbalising victim empathy and identifying the nexus between his alcohol consumption and subsequent poor decision-making.
He has provided me a letter in which he acknowledges that he has let his family and himself down as well as causing harm to another person. I have no difficulty accepting that he is truly remorseful for his actions on that night. I fully expect that if he could turn the clock he would want to do everything differently.
Sentencing
Sentencing is one of the hardest tasks of a court. In recent years it has become both more complicated and more flexible, though not unconstrained. [1]
[1] R v Massey [2022] ACTSC 3 at [1]
In considering the appropriate sentence in this case I must turn my mind to the purpose of sentencing in the relevant considerations described in the Crimes (sentencing) Act 2005 and in particular sections 7 and 33.
Section 7 emphasises punishment, the protection of the community, rehabilitation, denouncement of the conduct, recognising the harm done to the victim and making the offender accountable for their actions.
On the other hand section 33 sets out a series of matters which I must consider including the nature and circumstances of the offence, injury resulting from the offence, the effect of the offence on the victim, and a series of considerations which are personal to the defendant including his plea, his background, character, antecedents age and physical or mental condition, his financial circumstances, the effect that any sentence would have on his family, whether he was affected by alcohol, the degree to which the offence was the result of provocation, and whether the offender has demonstrated remorse.
There is a requirement for appropriate denunciation and general deterrence. The prevalence of assaults outside of licensed premises in the early hours of the morning is an issue in every city in Australia. This type of assault clearly needs to be deterred.
On the other hand, the defendant is a young man who is just starting out his adult life. Having just turned 18 at the time of this offence, I turn my mind to considerations in sentencing young people.
Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT) deals with the sentencing of young offenders.
The approach in Part 8A is consistent with the long-accepted principle that rehabilitation is generally an important (if not dominant) sentencing purpose to be taken into account when sentencing a young adult offender.
While the proximity of the offender’s age to 18 years of age is a relevant factor[2] courts have long recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid 20s[3]
[2] R v Duffy & Ors [2014] ACTCA 53 at [85]
[3] BP v The Queen[2010] NSWCCA 159
In relation to young offenders, the principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, and this may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance.
In my understanding, considerations of retribution direct attention to what the offender deserves. Where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution.[4]
[4] BP v R [2010] NSWCCA 159 at [3].
This offending and the various considerations I must take into account make sentencing this defendant a difficult exercise. The need to protect the community and to deter others from similar conduct is balanced against his youth, and his lack of any prior criminal conduct.
I accept what the Supreme Court has said in relation to rehabilitation being at the forefront of my considerations when dealing with a very young adult. The question for me is how that is best achieved.
Court duty report.
The court duty report confirms my view that he has led a mainly pro-social life and has had a very good start in life with a strong family, work, and peer network.
The report also indicates that he may benefit from a period of supervision. It also refers to his ability to meet a financial penalty and his suitability for a community service work condition.
Section 10 Crimes (Sentencing) Act
Both offences with which he is charged carry a maximum penalty of 5 years imprisonment.
Section 10(2) Crimes (Sentencing) Act places an obligation on me to only sentence an offender to imprisonment, for all or part of the term of the sentence, if I am satisfied, having considered possible alternatives, that no other penalty is appropriate.
In this case the threshold set by section 10 has been crossed. The violence visited upon the victim was so dramatic that it cannot be in any way be justified by the words spoken by the victim prior to being punched.
The prevalence of this type of violence outside of licenced premises in the early hours of the morning focusses my attention on the need for general deterrence, that is, deterring other young men from behaviour of this type. Coupled with this is the need to denounce the defendant’s behaviour.
I sentence the defendant to a period of imprisonment.
1. For the offence of assault occasioning actual bodily harm, I would have sentenced him to a period of 3 months imprisonment. I reduce that sentence to 2 months and 10 days imprisonment on account of his early guilty plea.
2. For the offence of escape custody I would have sentence him to a period of 10 days imprisonment. I reduce that sentence to 8 days imprisonment, to be cumulative on the 2 months and 21 days in respect of the assault occasioning actual bodily harm.
Rehabilitation
The defendants rehabilitation is at front and centre of my considerations.
I am hopeful that this offending is an aberration. I am hopeful that there will be no repeat of this type, or any type of offending behaviour by him. He has let himself down and has also let down his family.
Unlike so many young men who come before this court, he has the support of a family who all clearly value him. He also has the support of his employer who values his contribution to his company and is prepared to give him the opportunity to redeem himself.
In my view, the pathway to rehabilitation is through suspending the sentences of imprisonment and placing him on a bond to be of good behaviour.
Sentence
I make the following orders:
In respect of CC 858/2023 - Assault occasioning actual bodily harm - the defendant is convicted.
But for his plea in this matter I would have sentenced the defendant to imprisonment for a period of 3 months.
I reduce that period to 2 months and 10 days in acknowledgement of the discount to which I consider he is entitled for his plea.
The sentence is to be wholly suspended and the defendant is required to sign an undertaking that he will comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today’s date.
During the suspension of his sentence, he will be subject to the supervision of the director-general and obey all reasonable directions of that person for a period of 12 months from the date of suspension or such lesser period as the supervisor deems appropriate.
He will attend such educational, programs or counselling as directed, particularly in relation to the consumption of alcohol and anger management.
In respect of CC 859/2023 Escape from custody – the defendant is convicted. But for his plea I would have imposed a period of imprisonment of 10 days.
I reduce that period to 8 days in acknowledgement of the discount to which I consider he is entitled.
That period of imprisonment is to be cumulative on the imprisonment ordered in respect of CC 858/2023.
The sentence is to be wholly suspended and the defendant is required to sign an undertaking that he will comply with good behaviour obligations under Section 85 Crimes (Sentence Administration) Act 2005 (ACT), with no additional conditions, for a period of 18 months from today’s date.
For clarity, the total sentence to which the defendant will be subject if he breaches these bonds is a sentence of 3 months and 18 days.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Date: 9 June 2023 |
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