R v Bandy
[2018] ACTSC 261
•14 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bandy |
Citation: | [2018] ACTSC 261 |
Hearing Dates: | 14 May 2018 ; 27 August 2018 |
DecisionDate: | 14 September 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [112]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – intensive corrections order assessment – where offender at a ‘crossroads’ |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 Crimes (Sentencing) Act2005 (ACT) ss 6, 7, 10, 33 Crimes (Sentencing Procedure) Act (1999) (NSW) s 22 |
Cases Cited: | Hili v the Queen [2010] HCA 45; 242 CLR 520 Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 R v Miller [2018] ACTSC 244 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | The Queen (Crown) Jeb Lee Bandy (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr M Kukulies-Smith (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number: | SCC 254 of 2017 |
LOUKAS-KARLSSON J
Introduction
On 7 March 2018, Jeb Lee Bandy (the offender) pleaded guilty to an offence of recklessly inflicting grievous bodily harm per section 20 of the Crimes Act 1900 (ACT).
The maximum penalty for recklessly inflicting grievous bodily harm is 13 years imprisonment.
Facts
The agreed facts are set out in the Statement of Facts, which forms part of exhibit 1. The facts in summary follow.
On the afternoon of ANZAC day, the 25th of April 2017, the offender was at the Hellenic Club in Phillip, in the ACT, with his girlfriend and other friends.
The offender and his girlfriend had consumed a number of alcoholic drinks whilst at the Hellenic Club. He began behaving in an aggressive manner toward other people, and was arguing with his girlfriend. He yelled at her: “You don’t fucking tell me what to do”.
Due to the offender’s behaviour, Hellenic Club security approached the offender, and informed the offender that he would no longer be served any drinks and he asked the offender to leave. The offender replied: “I don’t give a fuck. I’m leaving soon”.
The offender remained in the Club for a further 40 minutes. He was observed to be intoxicated, unstable on his feet, slurring his speech, and behaving aggressively. Security again approached the offender and asked him to leave, to which the offender replied: “Yes, okay”. Security approached his girlfriend and asked her if she could look after the offender and assist him to get home.
A short time later the offender and his girlfriend walked to the Club foyer towards the exit, and on the way he said to security: “Fuck off”. In the foyer the offender was swearing, yelling, making threats towards security and arguing with his girlfriend, his fists were clenched and his shoulders were back. A male friend of the offender forcefully moved the offender out of the Club.
After exiting the Club, the offender walked through the carpark and towards the boom gates. His girlfriend followed the offender and was calling out to him. The offender continued walking.
10. The offender crossed Matilda Street walking away from the Club. At the same time, the victim was crossing Matilda Street walking towards the Club. The victim worked at the Club as a kitchen hand and was due to commence work. He was on a temporary working visa visiting Australia. The offender and the victim did not know each other.
11. There was no exchange of words between the men as they approached each other from the opposite direction whilst crossing the street; the victim did not say anything to the offender nor did he make contact with, or attempt to reach out to, the offender.
12. As the offender and the victim passed each other on the street, the offender suddenly, and without any warning or provocation, used his right fist to punch the victim in the face with considerable force. The victim fell backwards onto the road surface; he felt immediate pain to his mouth and scraped both his elbows when he fell back onto the road. The victim was bleeding from his mouth and from both elbows.
13. After punching the victim in the face, the offender continued walking. The offender was then observed by other witnesses to be yelling and arguing with his girlfriend.
14. Meanwhile, members of the public immediately came to the aid of the victim, assisted in walking him into the Club, and the victim was transported to Canberra Hospital for medical treatment.
15. Police were contacted and placed the offender under arrest. The offender was observed by police to be intoxicated and aggressive towards police.
16. The offender was handcuffed and placed into the back of a police caged vehicle. He was yelling out, “I’m sorry, I’m sorry you fuckers”.
17. The offender was not offered a record of interview due to his level of intoxication. At a later date police offered the offender an interview to which he declined.
Injuries Suffered
18. The victim suffered the following injuries to his mouth:
(a)His top front right tooth was completely dislodged;
(b)A second top right tooth was displaced and forced inwards;
(c)The gum around a third tooth (the top right ‘canine’ tooth) was badly damaged and bleeding;
(d)He suffered permanent nerve damage in his mouth; and
(e)He sustained a laceration to his lower lip with the laceration going from the outside of the lip through to the inside.
19. On the night of the assault, the victim received treatment at the hospital, including stitches to his lower lip.
20. After being discharged from hospital, the victim required dental treatment for the damage to his teeth and mouth, including root canal treatment and orthodontic treatment to realign his teeth. Additionally, an expert medical report and an expert dental report formed part of the agreed facts.
Victim Impact Statement
21. The extent of the impact upon the victim was made clear by the victim impact statement, contained within exhibit 1. The statement demonstrates the profound impact of the offending conduct. The victim in his victim impact statement spoke of the physical injuries suffered as a result of the crime. He also spoke of the psychological impact that the commission of the offences has had on him and of the difficulty he had speaking English as having an injury to his mouth made communication even more difficult. The victim referred to the fact that because of the ongoing medical appointments and court process, he was unable to take up a farming job after residing in Canberra. As a result, the victim has returned overseas.
Objective Seriousness
22. It is well-established that the two key matters to be considered when assessing the objective seriousness of offences of this type are first, the culpability of the offender’s conduct, and second, the relative seriousness of the grievous bodily harm sustained by the victim: R v Hidic [2017] ACTSC 307; R v Myles [2017] ACTSC 194; R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34.
23. The prosecution submitted that the offence was an unprovoked single punch on a stranger which led to very serious injuries for the victim. Further, it was submitted that the act occurred as the victim was crossing the road, and the offender left him lying on the road where cars were driving by. The prosecution submitted that a single punch or strike to the head is a dangerous act, and that the consequences can be catastrophic.
24. Counsel for the offender submitted that the degree of recklessness of the offender’s conduct was not as serious as striking with an implement such as a baseball bat. The defence further submitted that whilst the injury was significant, it was “not at the upper end of injuries that could be inflicted”.
25. Both parties submitted that the offence falls below the mid-range of objective seriousness. I accept on the evidence that this was an offence slightly below the mid-range of objective seriousness. References to low range, middle range and high range objective seriousness are however unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: see R v Toumo’ua [2017] ACTCA 9 (Toumo’ua). Regardless of the label attached of below mid-range objective seriousness, this was a very serious offence involving an unprovoked single punch to a stranger causing serious injury with significant consequences for the victim.
Change of direction not an aggravating factor
26. On the basis of the CCTV footage, the prosecution submitted that the offender had changed direction while crossing the street to walk directly toward the victim to “intercept him” and that this constituted an aggravating factor. This is not a matter agreed in the statement of facts. Counsel for the offender conceded that there was a change of direction but pointed to the “giant puddle of water” that was avoided in so doing. Having viewed the CCTV footage, I am not satisfied to the required standard of beyond reasonable doubt that the offender changed direction to target the victim: see R v Olbrich [1999] HCA 54; 199 CLR 270.
Conditional Liberty
27. The offender was on bail for an offence of assault occasioning actual bodily harm, and an offence of destroying or damaging property. These offences were related to an incident at the offender’s father’s house in 2016, following the stabbing of the offender by his stepbrother in 2015.
28. The prosecution submitted that as the offender was on bail, this was relevant to assessing the objective seriousness of the offence.
29. Conditional liberty is relevant to the determination of the appropriate punishment as it is an aggravating factor on sentence; it is not, however, relevant to assessing the objective seriousness of an offence. The assessment of objective seriousness of an offence is a fundamental step in determining the range of proportionate sentences available for the offence. In Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, Mason CJ, Brennan, Dawson and Toohey JJ stated,
The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.
In R v McNaughton (2006) 66 NSWLR 566 at [15], Spigelman CJ stated:
It is authoritatively established that the common law principle of proportionality, propounded in Veen v The Queen (No 2), requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances.
In Muldrock v The Queen [2011] HCA 39; 244 CLR 120 the Court stated the following at [27]:
The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
30. As a consequence, the NSW Court of Criminal Appeal has consistently made it “clear that while the fact an offender was on conditional liberty was relevant to the determination of the appropriate punishment”, it does not “bear on the objective seriousness of an offence”: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [90]-[92]; Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 at [30]; R v Van Rysewyk [2008] NSWCCA 130 at [25].
Subjective Circumstances
31. A Pre-Sentence Report (PSR) and Court Alcohol and Drug Assessment Service (CADAS) report was prepared for the sentence hearing. The offender also gave evidence before me on 14 May 2018.
32. An updated PSR dated 8 May 2018 was before me in the sentence proceedings along with a report dated 10 July 2017 in relation to previous charges. Subjective matters were also detailed in the Intensive Correction Order assessment report. The offender is 32 years of age and was born in Canberra where he was raised by his father and stepmother after his parents separated when he was very young. In the report, he described his stepmother as abusive and condemned his father for not allowing him to reside with his mother after his stepmother broke his arm while his father was in jail. The offender completed year 10 through a special education support program due to his poor behaviour while in a mainstream school. However, he has since obtained workplace qualifications. The offender does not have any contact with his father and three siblings who reside in Canberra, after one of his brothers stabbed him in 2015. He reported that he was hurt by his family casting him out. He reported a good relationship with his mother and four remaining siblings who live interstate. The offender is currently single and has two previous significant relationships. He had been in a relationship with his most recent partner for six years and the offender has an eight year old son from a previous relationship of eight years’ duration.
33. The offender reported to the author of the PSR that he had no recollection of the offence due to his level of intoxication. He indicated, however, that he accepts the content of the Case Statement based on information provided to him by others. He expressed appropriate victim empathy and indicated he was prepared to make financial reimbursement to the victim for dental costs.
Oral Evidence
34. The offender gave evidence that viewing the CCTV footage of the assault was “sickening” and that the next day he signed up for counselling at Directions ACT so as not to hurt anyone else.
35. He has undertaken counselling since that time. The offender gave evidence in relation to being stabbed by his stepbrother in the lung and stomach in 2015. This was a life-threatening injury. He was then rejected by his family for going to the police about the stabbing. The offender was referred to by his family in derogatory terms for informing the police. His brother received a gaol sentence. Subsequently in 2016, the offender was charged with assault occasioning actual bodily harm resulting from an occasion when he wanted to see his father. The offender was asked to leave and an argument ensued. The offender threw a rock that hit one of his siblings. He gave evidence that he was raised by his father, who had an association with an outlaw motorcycle gang. Additionally, he spoke of his counselling with Everyman Australia, to deal with the rejection by his family and losing contact with his son. He gave further evidence in relation to seeing Dr Torres, a psychologist, for psychological assessment. He is now undertaking psychological counselling. He sees a psychologist every week, sees a counsellor from Everyman once a week, and attends sessions with Directions ACT once a week. He gave evidence of drinking less and gave evidence of his feelings of guilt in relation to the victim.
36. The offender also gave evidence that he has the support of his biological mother who was present in court during the sentence proceedings.
Psychological Report
37. A psychological report was prepared in relation to the offender dated 3 May 2018 under the hand of Dr Cristian Torres.
38. Dr Torres refers to the fact that the offender indicated that he is aware of the impact of his violent attack on the victim, on his community, and on other employees of the club. He understood that club employees must now have concerns about being hurt in such a random event. Dr Torres stated that the offender presented as genuinely and significantly remorseful and that the offender became tearful when discussing this during the assessment. The offender also stated he only became aware of his violent conduct upon waking up in police custody, and within one week of this he had signed up to Directions ACT and commenced seeing a counsellor to address his alcohol intake.
39. The author of the report refers to the offender being raised in an antisocial environment from a young age, as his father was the sergeant of arms of a motorcycle gang. The offender reported being subjected to significant physical and emotional abuse at the hands of a stepmother who was a heroin addict. Dr Torres also noted the estrangement of his father and stepsiblings after the offender was stabbed by his stepbrother. The report deals with his feelings of rejection in this regard. The report also deals with relationship difficulties and schooling difficulties.
40. The report deals with underlying mental health issues at the time of the offence including depression, post-traumatic stress disorder and alcohol use disorder. The report refers to the stress resulting from the stabbing attack on him by his stepbrother and from his subsequent isolation from the family that has led to the development of PTSD symptoms. From the offender's account, the family is apparently of the view that the offender should not have reported the stabbing incident to police.
41. The report additionally discusses treatment options, including structured treatment for alcohol use disorder and counselling more generally. The offender would benefit from anger management and violent offender intervention. The report also stated that the offender would be unlikely to access the individual treatment he requires in a custodial environment. The report refers to the counselling that the offender has undertaken with Everyman, including 17 sessions on depression and anxiety, drinking, trauma, and grief. Dr Torres refers to the fact that the offender's engagement with the services does demonstrate some degree of insight, but he also notes that the engagement has been inconsistent at times. It is noteworthy that the offender self-referred to Directions ACT two days after the offence.
42. Under the heading “sentencing matters”, Dr Torres states that given the complexity of the offender's mental health needs, it is highly unlikely that these could be met in a custodial environment. If incarcerated, it is likely that the offender’s mental state would worsen in the absence of formal psychological intervention. It is also noted that the offender reports vulnerability in relation to incarceration as a number of individuals connected to his incarcerated stepbrother would seek to harm him. It is also noted that the offender is employed and pays child support.
43. In relation to attitude towards the offence, the offender expressed what appeared to be genuine remorse for his violent behaviour and the impact on his victim. He elaborated on his remorse without prompting which bodes well for his response to individualised treatment. Finally, the report states that the offender's risk of violent reoffending is assessed at low to moderate, and that this risk increases to moderate and possibly moderate to high when alcohol is consumed.
Court Alcohol and Drug Assessment Service Report
44. The Assessment Outcome of the CADAS report refers to the offender’s regular counselling with Everyman Australia and Directions ACT. The report also concludes with the offender’s willingness to engage with CADAS if required.
Remorse
45. The offender gave evidence before me on 14 May 2018 expressing his remorse. He has expressed his remorse to the author of the PSR and to Dr Torres. I accept that the offender is remorseful. In his evidence before me, I formed the view that he was sincere in this regard.
References and other Documentary Evidence
46. In evidence before me was a letter from Hermes psychological consulting under the hand of Dr Paul Ruefli dated 14 May 2018. The offender has attended two sessions of evidence-based therapy and engages well with the process. The letter also notes that the offender's counselling with the Everyman service and Directions ACT has been very effective and should be encouraged and continued.
47. Also in evidence before me is a letter from Directions ACT under the hand of Ms Parker, referring to the 13 counselling and eight medical sessions the offender has attended. The author refers to the offender having set appropriate life goals for himself centred around developing a strong family life, regaining contact with his son, maintaining his work and abiding by the law, and living a healthy life free from drug and alcohol difficulties.
48. Additionally in evidence before me was a letter from Everyman counselling under the hand of Mr Pash, counsellor, dated 30 April 2018. The letter refers to the fact that following the offence in 2017, the offender acknowledged he had a drinking problem and self-referred to Directions ACT, and at the same time undertook counselling from a psychologist.
49. There was also in evidence a statement of attainment of the offender in relation to a licence to operate a slewing mobile crane up to 60 tonnes dated 12 June 2018.
50. Also in evidence before me is a program completion certificate indicating that the offender has completed the “Preventing Violence Managing Anger” course.
Intensive Corrections Order Report
51. When this matter originally came before me on 14 May 2018, I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.
52. The ICO assessment report dated 23 August 2018 concludes with a recommendation that the offender has been assessed as suitable for an ICO and has signed an undertaking to comply with all of the obligations of an ICO.
53. The report is a detailed assessment of the offender’s suitability for an ICO. The assessment involved 12 interviews with the offender, two home visits, and the perusal and scrutiny of a number of relevant documents. The report also refers to seven urinalysis drug tests, the first two of which were positive for cannabis and there being no positive results thereafter.
54. The report also refers to the fact that the offender is aware of the requirement to be drug free throughout the ICO, and that the offender presented as motivated to meet the obligations of an ICO.
55. The report also notes that the offender “verbalised responsibility for his offending behaviour”, and that he displayed victim empathy and awareness, acknowledging the harm caused to the victim of the offence, as well as to others in the community that witnessed his actions.
56. The report also notes that the offender has recommenced regular contact with his eight year old son in recent weeks, which appears to have had a positive impact on him. The offender is looking forward to spending more time with his son.
57. Since leaving school the offender has attained a number of qualifications in the building industry and continues to seek further skills within the industry. He recently completed training to certify him to operate a Slewing Mobile Crane. The offender expressed this was a significant achievement given his diagnosis of dyslexia. He reported his learning difficulties previously prevented him from completing courses.
58. The offender is currently employed on a permanent basis as a carpenter/crane operator and has held this position for the past six months. Prior to this he had held a similar position for two years. Contact with his employer confirmed that he is a well-regarded employee within the business. The offender reported he is also in the process of starting his own business, sub-contracting out to larger companies.
59. Additionally, the offender reported he has been making efforts to develop more pro-social networks by pursuing friendships with work colleagues.
60. The report stated that the offender has demonstrated a commitment to addressing his primary risk factors, being substance abuse and mental health issues, and appears to have provided himself with a strong foundation in regards to maintaining a pro-social lifestyle. The report concludes that the offender is considered a medium to low risk of reoffending, and states that if he continues his current progress, his risk of reoffending may be further reduced.
Plea of Guilty
61. On 7 March 2018, the offender pleaded guilty to the charge now before the Court. The plea was entered into after the offender had been committed for trial and a week before the trial was to commence.
62. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act (1999) (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4 in relation to the utilitarian value of pleas of guilty in commonwealth matters.
63. Monfries v The Queen [2014] ACTCA 6 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
64. Counsel for the offender submitted that a discount of 10 to 15 percent would be appropriate in respect of the early plea of guilty.
65. The prosecution submitted that this was a late plea, one week before the trial in the face of an overwhelming prosecution case. The prosecution submitted that pursuant to s 35(4), the offender should not receive a significant discount. The prosecution conceded that a discount within the range of 10 to 15 percent was appropriate.
66. Counsel for the offender referred to correspondence with the prosecution regarding the charge laid against the offender, which was relevant to the timing of the plea of guilty. That correspondence formed exhibit 12. I will allow a discount for the plea of guilty of 15 percent.
Criminal History
67. In addition to the offences committed in 2016 referred to at [27] of assault occasioning actual bodily harm and of damage to property, the facts of which were before me, the offender has a significant criminal record including driving matters, possess and cultivate cannabis in 2013, unauthorised possession of a firearm in 2010, property damage in 2008 and burglary in 2006.
Time in Custody
68. The offender has spent no time in custody for this offence.
Consideration
Statutory and Other Considerations
69. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
70. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration.
71. 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.
72. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO, including community service work as a condition.
73. One punch attacks by young men that cause significant injury to victims are all too common and the sentencing purpose of general deterrence requires the imposition of a significant sentence. Accountability, denunciation and recognition of harm to the victim are also important sentencing considerations: R v Hidic [2017] ACTSC 307 at [34]-[35].
74. There is no question that innocent members of the community should not be attacked by drunken individuals.
Hardship in custody
75. The offender’s stepbrother remains in custody at the Alexander Machonochie Centre at the present time as a result of having stabbed the offender. Counsel for the offender submitted that this should be taken into account as a factor. Counsel for the offender submitted the following:
He reports that a number of individuals connected to his incarcerated half-brother would seek to do him harm. He also feels he would be highly vulnerable by virtue of his half-brother currently being housed there.
Counsel for the offender cited R v Verdins [2007] VSCA 102; 16 VR 269 in this regard.
76. The prosecution submitted that ultimately, the impact of his stepbrother’s incarceration was a matter for Corrections should the offender be sentenced to full time imprisonment. I take into account the prosecution submission on this issue.
Cases
77. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who inflicted grievous bodily harm on victims. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
78. In R v Kepaoa [2017] ACTSC 414, Mossop J referred to a number of recent decisions, at [36]-[40] as follows:
36.In R v Dunn [2017] ACTSC 227 the offence involved a punch to the head causing permanent damage to the complainant’s eye resulting in a substantial permanent impairment of vision that had long-term consequences for the victim and which occurred in the presence of police where the offender had a history of previous violent conduct. A sentence of 27 months was imposed which was suspended after 11 months.
37.In R v EL [2016] ACTSC 241 the offender had picked-up a wooden fence paling and hit the complainant which resulted in extremely severe life-threatening injuries to his head. The offender had been a child soldier in Sudan and had an extremely troubled childhood. He had previous convictions for offences of violence. The offender was sentenced to imprisonment for two and a half years reduced from three years on account of the plea of guilty. It was to be served by an Intensive Corrections Order.
38.In R v Hidic [2017] ACTSC 307, the offender had punched a player upon an opposing futsal team in the head. The victim suffered a fractured eye socket as well as lacerations requiring stitches. The offender was a young man who was otherwise of good character. Having served two months when bail-refused he received a sentence of two years and seven months to be served by way of an Intensive Corrections Order as well as 300 hours of community service.
39.R v Sharma [2016] ACTSC 180 involved a one-punch attack by a drunk man who was 20 at the time of the sentence. Elkaim J at [34] and [35] emphasised the need for general deterrence for this kind of attack. The offender was sentenced to 27 months’ imprisonment suspended after nine months.
40.In R v Myles [2017] ACTSC 194, the offender had committed another one-punch attack whilst drunk which led to a broken jaw. He was given a sentence of 22 months which was to be served by Intensive Corrections Order as well as a requirement that he perform 249 hours of community service within 12 months.
79. In R v Sikoulabot [2018] ACTSC 217 at [23]-[26], I referred to a number of additional recent decisions that are relevant:
23.In R v Deng [2017] ACTSC 338 the offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm. The offender struck the victim with a closed fist. The victim fell to the ground striking the right side of his face on a solid metal table, suffering serious injuries as a result of the application of blunt force to his lower jaw which required surgical procedures. The offender had a history of alcohol and drug abuse. The offender was sentenced to 12 months imprisonment, to be served by way of an Intensive Corrections Order.
24.In R v Kepaoa [2017] ACTSC 414, the offender pleaded guilty to one count of recklessly inflicting grievous bodily harm, having punched the primary victim in the face three times. The victim did not retaliate and was admitted to hospital where he required extensive treatment for a broken jaw and related fractures and complications. The offender had on the same occasion committed an offence of common assault against a woman associated with the primary victim, by pushing her aggressively from behind. In R v Kepaoa (No 2) [2018] ACTSC 24, the offender was sentenced to 22 months imprisonment, served by way of Intensive Corrections Order, as well as 249 hours of community service, in addition to a Good Behaviour Order for a period of 12 months for the common assault offence.
25.In R v McNeill [2018] ACTSC 125, the offender pleaded guilty to a charge of common assault, and a charge of recklessly inflicting grievous bodily harm. The offender punched the first victim in the face, then threw a punch at the victim which knocked the second victim unconscious, before immediately leaving the scene. The second victim required emergency surgery for a broken jaw. The offender was sentenced to 30 months imprisonment for the offence of recklessly inflict grievous bodily harm, to be served concurrently with 6 months for the offence of common assault, with the whole sentence to be served by way Intensive Corrections Order.
26.In R v Chapman [2018] ACTSC 57, the offender pleaded guilty to a charge of recklessly inflicting grievous bodily harm in relation to an unprovoked strike to a victim which fractured the victim’s jaw, at a nightclub. The offender did have previous convictions for violent offences. The offender was sentenced to 15 months imprisonment, fully suspended upon entering into a 30 month good behaviour order, with a requirement to perform 300 hours of community service within 30 months.
80. The prosecution also referred to the following cases in their written and oral submissions.
81. In R v LT [2017] ACTSC 343, a 25 year old woman with no criminal history pleaded guilty to aiding and abetting the offence of recklessly inflicting grievous bodily harm committed by a co-offender. The co-offender struck the victim about three times on the head with a metal pole. The offender was the sole carer for dependants and had experienced significant trauma in the lead up to the offence. The offender was not suitable for an ICO. The offender was sentenced to two years and three months’ imprisonment, to be fully suspended upon the offender entering into a good behaviour order for the duration of the sentence.
82. In R v Burgess [2017] ACTSC 249, a 41 year old offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The offender struck the victim with a metal pole three times on the head, and also smashed the front passenger window of the victim’s vehicle. The offender received a sentence of three years and one month of imprisonment, with a non-parole period of two years.
83. In R v Pallier [2017] ACTSC 112, the offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm, as well as an offence of possessing ammunition and an offence of possessing a firearm. In that case, the offender shot the victim in the right leg. The offender was sentenced to 27 months imprisonment with a non-parole period of 18 months.
84. In R v McBride [2017] ACTSC 102, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The offence placed the offender in breach of suspended sentences imposed for one offence of common assault, and two offences of failing to appear. The offender stabbed her sister with a steak knife after intervening in an argument between her sister and her sister’s children. The offender had a significant criminal history. The offender received a sentence of three years and one month imprisonment with a non-parole period of 20 months. The sentence for the specific count of inflicting grievous bodily harm was 3 years imprisonment.
85. In R v Carmody (No 3) [2017] ACTSC 60, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm, as well as an offence of damaging property. The offender hit the victim with a baseball bat once before turning the bat on the car windows. The offender was found to be not suitable for an ICO and had an extensive criminal history. The offender was sentenced to 2 years and 6 months imprisonment, suspended for a period of 3 years. The sentence for the specific count of inflicting grievous bodily harm was 2 years and 5 months imprisonment.
86. In R v Rappel [2017] ACTSC 38, the offender plead guilty to an offence of recklessly inflicting grievous bodily harm, as well as a charge of murder, a charge of contravening a protection order, and a charge of assault occasioning actual bodily harm. The three counts for acts of violence were committed against three different victims. The offender attacked the first victim with an axe, killing that victim, and in the process causing grievous bodily harm on the second victim, and causing actual bodily harm to the third victim. The attack occurred in the presence of children. The injury inflicted to the victim who suffered grievous bodily harm was considered to be at the lower end of the scale of such harm. The offender had a limited criminal history. The offender received an overall sentence of 32 years and 2 months imprisonment, with a non-parole period of 26 years. The sentence for the specific count of inflicting grievous bodily harm was 2 years and 11 months imprisonment.
87. In R v Beniamini (No 2) [2017] ACTSC 32, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm, as well as four counts of common assault and one count of escaping from lawful custody. The offender punched the victim a number of times to the head and body. The victim sustained a life threatening injury to his head. The offence was considered by the sentencing judge to be “serious but not a particularly serious version of the offence”. The offender had a significant criminal history, and had breached a good behaviour order in committing the offences, resulting in a suspended sentence of seven months imprisonment being imposed. The offender was sentenced to 4 years and 8 months imprisonment, with a non-parole period of 2 years. The sentence for the specific count of inflicting grievous bodily harm was 2 years imprisonment.
88. In R v Smith [2016] ACTSC 330, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The offender committed a sustained attack on his fiancée, including choking her and hitting the back of her head against the ground. The offender had a brief criminal history and had made significant efforts at self-rehabilitation. The offender was sentenced to 2 years imprisonment, fully suspended upon the offender entering into a good behaviour order for 3 years.
89. In R v Seretin [2016] ACTSC 45, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The victim was an 82-year-old man. The offender had pushed over a bin outside the victim’s house while drunk. When the victim was outside investigating the incident, the offender jumped on the victim, causing the victim to hit his head and fall unconscious. The offender then choked the victim whilst he was pinned to the ground. The offender had no criminal history, was of prior good character and had good prospects for rehabilitation. The offender was sentenced to 4 years of imprisonment with a non-parole period of 20 months.
90. In R v Williams [2015] ACTSC 406, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The offender hit his brother, the victim, on the right side of his head with a guitar, rendering the victim unconscious. The victim suffered a skull fracture and a haematoma on his brain. The offender had a significant criminal history, but there was no explanation for violent behaviour in the offender’s background. The offender was sentenced to three years imprisonment, with a non-parole period of 18 months.
91. The defence referred to the following cases in their written and oral submissions.
92. In R v Neish (Unreported, Refshauge J, 24 May 2013), the offender was found guilty at trial of an offence of recklessly inflicting grievous bodily harm. The offender punched the victim in the face and head, and then continued punching the victim until he was pulled off. The victim suffered a serious injury to his right orbital floor which has left him with diplopia (double vision) for the foreseeable future, bilateral peri-orbital bruising, and a bilateral subconjunctival haemorrhage. These injuries required an operation and left the victim with permanent symptoms. The offender was 25 years old at the time of sentencing and had no prior convictions. The offender was sentenced to 2 years imprisonment, to be served by periodic detention for three months, and suspended thereafter.
93. In R v Pumpa [2014] ACTSC 223, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The offender punch the victim to the left side of his face, causing the victim to lose consciousness and fall to the ground. The sentencing judge at [3] considered that the victim’s “head injuries were very serious and might have permanent or long-lasting consequences”. The offender had a criminal record including two previous offences for violence. The offender was sentenced to two years and eight months of imprisonment. The offender was ordered to serve the first 12 months by way of periodic detention. The sentence was suspended thereafter.
94. In R v Laipato (Unreported, Nield AJ, 16 September 2010), the offender pleaded guilty to offences of recklessly inflicting grievous bodily harm, and aggravated burglary. The offender, in company, attacked the victim in their home and punched the victim in the face three times. The assault resulted in four fractures and two haemorrhages. The offender was intoxicated and drug affected with a significant history of drug abuse and criminal offending. The offender was found to have no reasonable prospects of rehabilitation. The offender was sentenced to two years’ imprisonment in respect of the aggravated burglary, and three years’ imprisonment in respect of recklessly inflicting grievous bodily harm, with a single non-parole period of two years and six months.
95. In R v RC (Unreported, Burns J, 19 October 2012), the offender pleaded guilty to one count of recklessly inflicting grievous bodily harm. The offender stomped on the head of the victim whilst the co-offender kicked the victim, before both offenders fled the scene. The victim suffered a large extradural haematoma extending into the temporal lobe from the interior pole to the middle cranial fossa, with multiple injuries to the middle meningeal artery, which required urgent surgery. The offender was sentenced to six years’ imprisonment, with a non-parole period of four years and three months.
96. Both parties also referred to the following cases in their written and oral submissions.
97. In R v Cranfield [2017] ACTSC 171, the offender pleaded guilty to a number of charges, one of which was recklessly inflicting grievous bodily harm. The offender, while affected by methylamphetamine and behaving in an unusual, sexually-aroused an disinhibited manner, attended the house of the victim, who had obtained an Interim Domestic Violence order restraining the offender from being within 100 meters of her. The offender let himself inside the house and after arguing with the victim, performed a number of acts of sexual intercourse without consent, made a threat to kill, and punched the victim. The original sentences imposed were successfully appealed by the offender in Cranfield v The Queen [2018] ACTCA 3 on the basis that an incorrect discount for plea of guilty was applied. The offender was sentenced to an overall sentence of 14 years imprisonment with a non-parole period of 9 years. The sentence in relation to the charge of recklessly inflicting grievous bodily harm was 3 years 7 months and 5 days.
98. In R v Bartlett [2016] ACTSC 390, the offender was found not guilty at trial of intentionally inflicting grievous bodily harm, but was found guilty of the alternative charge of recklessly inflicting grievous bodily harm when he drove a motor vehicle that collided with the victim. The victim sustained a compression wedge fracture of his 11th thoracic vertebrae, several injuries to his left knee, vertebral body bony contusions of his fifth and sixth cervical vertebrae, and an abrasion to his right knee. In R v Bartlett (No 2) [2017] ACTSC 51, the offender was sentenced to three years and six months imprisonment to be served by way of ICO, with a requirement to perform 150 hours of community service within 12 months.
99. In R v Rheinberger [2016] ACTSC 14, the offender was convicted after a judge alone trial of recklessly inflicting grievous bodily harm. The offender punched the victim in the head, causing him to fall to the ground. The offender then punched the victim in the head several times, which caused multiple facial fractures and other injuries. The offender was given an opportunity to attend residential rehabilitation prior to the sentencing hearing. In R v Rheinberger (No 2) [2016] ACTSC 307, the sentencing judge was satisfied that the offender took the opportunity to attend rehabilitation to the best of his ability at the time. The offender was sentenced to 18 months imprisonment, fully suspended upon the offender entering into a good behaviour order for 18 months.
Having regard to the differing objective circumstances of those cases and the subjective circumstances of the offender, no clear pattern emerges from those sentences other than that the offence is treated very seriously having regard to the necessarily grave consequences of the offender’s actions. There is clearly a significant need for general deterrence of violent conduct by young men that occurs in or near licensed drinking establishments.
Crossroads
Counsel for the offender made the submission that the offender was at a crossroads in his life and that therefore a sentence of imprisonment served by way of ICO rather than full time custody was appropriate.
This calls for a consideration of the principle outlined in R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 (Osenkowski), discussed in R v Ang [2014] ACTCA 17 (Ang), that the sentencing discretion of judges should not be unduly circumscribed in such circumstances.
The well-known passage from the judgement of King CJ at 212-213 is as follows:
It is important the prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy were judges sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
I have formed the view that leniency at this stage of the offender’s life may lead to reform. I have formed this view for the following reasons:
(a)He has pleaded guilty;
(b)There is evidence before me that he is remorseful. I have had the benefit of the offender giving evidence before me in relation to his remorse and in relation to the important and positive changes he has made in his life;
(c)He has recommenced regular contact with his son and pays child support;
(d)He has a strong record of employment; and
(e)As discussed in detail above, he has self-referred for counselling assistance in dealing with his issues in the aftermath of the offence. His efforts in this regard are regular and ongoing.
Sentence
It must be recognised that the assault on the victim has had a significant impact upon him. Both the short and long-term consequences of being the victim of a violent assault must be acknowledged. It must also be recognised that no sentence that the court imposes can rectify the consequences of what has occurred to the victim in the commission of the offence by the offender.
Both parties accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of full-time imprisonment or whether it can be served by way of ICO.
The prosecution submitted that a period of full-time imprisonment is appropriate. The offender’s plea of guilty, his remorse, his suitability for an ICO, his good prospects for rehabilitation, and his being at a crossroads in his life, point in a direction other than a term of imprisonment served by way of full time custody.
Relevantly, as I stated in R v Miller [2018] ACTSC 244 at [57], in Veen v R (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
It is well to underline at this juncture that where two highly relevant considerations are incompatible, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105.
As stated by Murrell CJ in R v Hill [2016] ACTSC 310 (Hill) where a person has very good prospects of rehabilitation, the Court, by supporting those prospects in the sentence imposed , thereby also addresses likely future harm to the community and protection of the community. It was also emphasised in Hill that sentencing must always deliver individualised justice. There will be exceptions to the necessity for full-time custody. In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offence, the offender’s plea of guilty, his remorse as expressed in his evidence before me, the ICO report, his good prospects for rehabilitation, and my view that he is at a crossroads in his life.
In my view the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that the imposition of an ICO is not a lenient sentence. Its content will require strict adherence and if this is not followed could result in a period of full-time custody. The appropriate sentence for the offence of recklessly inflicting grievous bodily harm is 36 months imprisonment which I reduce by about 15% because of the plea of guilty. Additionally, in light of the seriousness of the offence, it is appropriate that there be a condition relating to the undertaking of Community Service. Further, in light of the need for ongoing rehabilitation, conditions relating to rehabilitation programs and the consumption of alcohol are also appropriate.
Orders
I make the following orders:
(a)In respect of the offence of recklessly inflicting grievous bodily harm (CC17/4678), the offender is sentenced to 30 months imprisonment from 14 September 2018 to 13 March 2021.
(b)Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the offender is to serve his sentence by way of Intensive Corrections Order. I impose the core conditions. I impose the following additional conditions:
(i)That the offender perform 250 hours of community service within 30 months;
(ii)That the offender attend any programs or counselling that he is directed to by the Director-General including in relation to alcohol and drug use, mental health, family relationships, and finances; and
(iii)To obey the directions of the Director-General in relation to the consumption of alcohol.
| I certify that the preceding one hundred and twelve [112] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 14 September 2018 |
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