R v Barron
[2020] ACTSC 281
•13 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Barron |
Citation: | [2020] ACTSC 281 |
Hearing Dates: | 19 August and 13 October 2020 |
DecisionDate: | 13 October 2020 |
Before: | Murrell CJ |
Decision: | Sentenced to three years and nine months’ imprisonment with a nonparole period of 26 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Intentionally inflict grievous bodily harm – Co-offenders |
Legislation Cited: | Crimes Act 1900 (ACT) s 19 Crimes (Sentencing) Act 2005 (ACT) s 33 |
Cases Cited: | Jovanovic v The Queen [2015] ACTCA 29 R v Rappel [2019] ACTCA 11 R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 |
Parties: | The Queen (Crown) Michael John Barron (Offender) |
Representation: | Counsel M Howe (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) | |
File Number(s): | SCC 141 of 2020 |
MURRELL CJ:
Introduction
The offender pleaded guilty to the offence that, on 24 February 2020, he intentionally inflicted grievous bodily harm on the complainant, contrary to s 19 of the Crimes Act 1900 (ACT).
The maximum penalty for the offence is 20 years’ imprisonment.
There are two co-offenders, Ms Wright and Mr Edgerton.
The offender was arrested on 11 March 2020 and remained in custody until 2 April 2020, when he was released on bail (a period of 23 days).
The offender was on parole at the time of the offence. On 25 August 2020, parole was revoked because of the commission of the subject offence, and he began to serve the remainder of the earlier sentence. It expires on 4 April 2021. The remaining part of the sentence was seven months and 10 days’ imprisonment.
The offender entered a plea of guilty at the fourth mention in the ACT Magistrates Court after the prosecution provided detailed evidence of the extent of injuries suffered by the complainant, establishing that they amounted to “grievous bodily harm”.
The pleas of guilty were entered in the context of a strong prosecution case. Mr Edgerton provided a detailed version of events to police, and the complainant identified the offender as the attacker. Recorded telephone conversations revealed Ms Wright’s participation in the offence. In relation to the entry of the plea, discussions between the parties commenced at an early stage, and the offender was waiting to receive further details regarding the extent of the injury to the victim before conceding that the injuries amounted to grievous bodily harm.
Although the plea was not entered at the earliest opportunity, it was entered at an early opportunity and I propose to allow a discount of 25 per cent.
Facts
In January 2020, Ms Wright ended a seven-year relationship with the complainant. Soon afterwards, she commenced a relationship with Mr Barron. Ms Wright continued to live at the Kaleen residence where she had formerly lived with the complainant.
Although Mr Edgerton had no blood relationship to Ms Wright, he regarded her as his mother.
During February 2020, including on 23 February 2020, the complainant and Ms Wright exchanged acrimonious text messages, including offensive messages in relation to Mr Barron.
On the evening of 23 February 2020 and into the early hours of the following day, Ms Wright, Mr Barron and Mr Edgerton made a plan to assault the complainant on 24 February, as he was to collect his belongings from the Kaleen residence on that day.
Mr Barron ensured that he had access to a metal trolley pole.
On the morning of 24 February 2020, Ms Wright communicated with the complainant via text message to confirm the time at which he would collect his belongings. The CCTV security system at the property was disconnected (although the evidence does not disclose when or by whom). During the morning, Ms Wright spoke by telephone with her son, telling him that the complainant would be “going on a long holiday”.
Shortly before the incident, Ms Wright told Mr Edgerton that he was to assist the complainant to carry a trash pack frame in order to facilitate the attack.
At about 12:25 PM on 24 February 2020, the complainant arrived at the property and walked through to the backyard, where he saw Ms Wright, Mr Barron and Mr Edgerton. The complainant began to load his property onto a utility vehicle.
Mr Edgerton offered to help the complainant to move a trash pack frame. As they were moving the frame towards the vehicle, the complainant heard someone call his name. He turned his head and saw Mr Barron approaching him, holding the metal shopping trolley pole. The pole was between 45 and 61 centimetres in length, with a diameter of two or three centimetres.
Mr Barron swung the pole at the complainant, striking him on the left cheekbone and eye socket. The complainant felt pain and staggered backwards. Mr Barron struck the complainant a further two times over the head. After the second strike, the complainant fell to the ground. Mr Barron continued to strike him on the arm, leg and back. The complainant began to bleed profusely.
Mr Barron then allowed the complainant to stand up, and Mr Edgerton continued to assist the complainant to carry the frame to the front of the house.
At one stage, Mr Barron told the complainant to “fuck off and don't come back”.
The complainant managed to drive home. His grandmother conveyed him to the Calvary Hospital, where the following injuries were observed:
(a)a chipped and bleeding tooth;
(b)four deep lacerations to the scalp and face (the skull was visible at the base of a laceration over the left eyebrow), which were closed with medical sutures;
(c)an undisplaced left orbital roof fracture;
(d)a comminuted fracture of the left zygomatic arch;
(e)a fracture of the left infratemporal wall of the left maxillary antrum; and
(f)a fracture to the head of the right fifth metacarpal bone, for which a plaster cast was applied.
On 10 March 2020, in a series of text messages between Ms Wright and Mr Barron, the couple discussed exculpating Mr Barron and implicating Mr Edgerton as the principal assailant. The offender is not being sentenced for this conduct.
Mr Barron was arrested on 11 March 2020.
Victim impact
Following the initial hospital attendance, the complainant attended the Calvary Hospital as an outpatient for monitoring and treatment of his facial and eye injuries and for physiotherapy on his right hand.
Dr Thomas reported that the complainant would have scarring to his scalp and face, and reduced movement in the smallest finger of the right hand. He may acquire facial asymmetry, and experience ongoing pain and discomfort and ongoing psychological sequelae. Dr Thomas reported that head trauma can cause temporary or permanent brain injury and can increase the risk of neurological disease later in life.
The complainant himself did not wish to provide a victim impact statement.
There is no evidence that the possibilities identified by Dr Thomas have materialised.
Objective seriousness
The objective seriousness of the offence is to be assessed by reference to the culpability of the offender and the degree of grievous bodily harm that was occasioned.
The culpability of the offender is informed by the following matters:
(a)The motive for the attack was retribution connected with the recent relationship between Ms Wright and the complainant. The offender may have wished to correct a perceived wrong towards Ms Wright and, possibly, towards himself.
(b)The offence was planned on the day before it occurred; the participants ensured that the complainant would attend the house at a particular time and the CCTV system was disconnected (although it is unclear when or by whom).
(c)The complainant was defenceless and vulnerable when the attack commenced because he was carrying the trash pack frame.
(d)A weapon (a metal trolley pole) pole was used. As noted by the offender’s counsel, for offences of this type, it is very common for a weapon to be used.
(e)The complainant was struck on numerous occasions, including three strikes to the head (a particularly vulnerable area) and strikes to various parts of the body while the complainant was on the ground and defenceless.
(f)The assault was committed in company.
Given the offender’s role as the assailant who wielded the metal bar and was directly responsible for the complainant's injuries, his culpability is significantly greater than that of the co-offenders.
Although the injuries did not require surgery and most are not permanent, because of their nature and number, they are within the spectrum of injuries amounting to grievous bodily harm, albeit not at the more serious end of the spectrum. The injuries included three facial fractures and four deep lacerations to the scalp. It was fortunate that the assault on the complainant’s head did not have more serious consequences.
Subjective features
The offender is 35 years of age.
He has a significant criminal history, although there are no offences of overt violence on his record. He has breached family violence and personal protection orders on several occasions and has convictions for damage property, trespass, dishonesty, and driving charges.
From July 2018 to August 2019, he served a period of full-time imprisonment. For numerous offences of contravening a family violence order and other matters, on 30 July 2019, he was resentenced to a total term of two years’ imprisonment from 30 July 2018 to 29 July 2020 and a nonparole period of 13 months’, expiring on 29 August 2019: Barron v Laverty [2019] ACTSC 198. To allow him to complete a family violence program, he was not released on parole until 20 December 2019.
It is an additional aggravating feature on sentence that the offender was released on parole only two months prior to committing the subject offence.
The offender reported a positive upbringing with his parents and two siblings. However, his relationship with his family has been negatively impacted by illicit substance use and anti-social associates. In the past, his parents have taken out protection orders against him. Prior to the most recent period of incarceration, the offender was residing with his parents. They have gone to great lengths to try and support him in avoiding anti-social associates and behaviours.
The offender remains in a relationship with Ms Wright. However, because of bail conditions and the fact that he has been on remand, he has had little contact with her since 16 March 2020.
Ms Wright has eight children aged between 10 and 20 years of age. The offender has two children from an earlier relationship and acted as a father figure to his ex-partner's other children. Currently, he has no access to the children.
Because of a learning disability (attention deficit hyperactivity disorder), the offender struggled with schoolwork. After Year 9, he left school to pursue employment as a landscaper. He maintained sporadic employment before being placed on a disability support pension in 2014.
The offender said that he was friends with members of an Outlaw Motorcycle Gang but was not a member himself. He proposes to avoid past anti-social associates.
The offender commenced using cannabis at 16 years of age and methamphetamine at 18 years of age. He was using daily until he was remanded in custody in August 2017 for previous matters. Earlier in his life, he used heroin daily for four years from 21 years of age.
He receives pharmacotherapy treatment and says that he has not used drugs since 2018. Urine tests have consistently returned negative results.
The offender’s previous compliance with community corrections orders was unsatisfactory. There were numerous breaches for failing to attend supervision, failing to provide urinalysis samples, and travelling outside the ACT without permission. On 9 July 2020, the offender was placed on supervised bail and his compliance to 25 August 2020 was satisfactory.
The pre-sentence report states that the offender demonstrated both victim-blaming and victim-empathy. He is attending a domestic violence program and is finding the strategies and skills that he is learning are beneficial. He is confident that he can use the skills to avoid future violent offending.
The authors of the pre-sentence report assessed the offender as a medium-high risk of further offending. They said that he required strategies to address risks associated with mental health issues, illicit substance use, and poor decision-making. .
In 2002, the offender was diagnosed with attention deficit hyperactivity disorder. In 2009, he was referred to the Crisis and Assessment Treatment Team with symptoms of aggression, agitation, paranoia, and hallucinations. He was assessed as having mild depressive symptoms and ongoing substance use.
His next contact was in 2013, when he presented to the Calvary Emergency Department with agitation, auditory hallucinations, paranoia, and other symptoms. This was a “situational crisis related to substance use and personality vulnerabilities”, consistent with substance-induced psychosis.
He was assessed by ACT Mental Health Services on three further occasions between 2013 and 2020. At the last psychiatric review, in August 2020, the impression was that his low mood symptoms and auditory hallucinations were present on a background of a long history of substance use, previous episodes of drug induced psychosis, and more recent trauma, rather than manifesting an underlying psychosis. I take this to mean that, because of past drug induced psychosis, the offender is vulnerable to exhibit psychotic symptoms from time to time, particularly if he engages in drug use.
A forensic mental health report described a complex clinical presentation with a variety of symptoms including low mood, auditory hallucinations and paranoia, consistent with a history of drug induced psychosis, as well as symptoms suggestive of post-traumatic stress disorder. It stated that psychotic illness cannot be ruled out but was not the primary diagnosis. It recommended that the offender continue receiving psychotropic treatment, including antipsychotic and antidepressant medication, to stabilise his symptoms. It was suggested that he would benefit from dialectical behaviour therapy. The author considered that, while the offender was eager to abstain from substance abuse, he would remain vulnerable to relapse.
I accept that a significant part of the offender's previous criminal history is related to his drug use, although a significant part is also related to his inability to behave appropriately in a domestic context.
Comparable cases
The Crown referred to the following cases as comparable sentences.
In Jovanovic v The Queen [2015] ACTCA 29, the offender stabbed the complainant five or six times to the side of the back in an attack at a bus interchange. The complainant suffered a punctured lung and severed intercostal artery. The offender had a criminal history, but there were no recent violent offences. Following a trial by jury, he was sentenced to 10 years and nine months’ imprisonment. On appeal, the Court of Appeal found that the sentence, while “undoubtedly stern”, was not manifestly excessive: at [45].
In R v Rappel [2019] ACTCA 11, when in company, the offender assaulted two complainants inside cells at the Alexander Maconochie Centre. No weapon was used. One complainant suffered fractured ribs, a punctured lung, and fractures to the eye socket. The other complainant suffered cuts resulting in scarring. The offender was serving a lengthy sentence of imprisonment for offences including murder. A plea was entered at a late stage. On appeal, the sentences were increased on appeal to five years’ imprisonment for the more serious assault and two years and six months’ imprisonment for the less serious assault.
In R v Bourne; R v Manns [2018] ACTSC 35, Mr Bourne struck the complainant’s hand with a sledgehammer, causing multiple fractures that required surgery and the insertion of a titanium screw. The offence occurred in the context of the sale of illicit drugs. The offender had a significant criminal history, including for violent offending. For the offence of intentionally inflicting grievous bodily harm, Elkaim J sentenced the offender to six years and nine months’ imprisonment (reduced from nine years’ imprisonment for the plea of guilty).
In R v Chevalier [2018] ACTSC 236 (Chevalier), during an aggravated robbery, the offender stabbed the complainant in the back when the complainant attempted to flee. The complainant suffered a penetrating chest injury to the left upper back. The offender had a significant criminal history, including offences of violence. Following a trial by jury, he was sentenced to five years’ imprisonment.
R v Po’oi [2018] ACTSC 364 related to the same incident as Chevalier. The offender was not present at the time of the stabbing but was guilty by joint commission. He had a significant criminal history. He was sentenced to three years’ imprisonment.
The offender in R v Torbert [2015] ACTSC 331 was charged with recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act. He approached the complainant from behind and struck him with a machete to the back of his leg, severing the complainant’s Achilles tendon. The offender unsuccessfully attempted a further strike on the complainant. In protecting himself, the complainant suffered cuts to his fingers that caused ligament damage. The offender had a substantial criminal history for minor offences. Robinson AJ sentenced the offender to five years and three months’ imprisonment (reduced from seven years’ imprisonment for the plea of guilty).
In R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305, during an aggravated burglary, there was a struggle between the complainant and the offenders. A shot was fired, striking the complainant in the left arm. He required surgery and ongoing physiotherapy. Both offenders had significant criminal histories and were found guilty following a trial. For offences of intentionally inflicting grievous bodily harm, each was sentenced to four years’ imprisonment.
For the period to February 2019, limited sentencing statistics are available on the Sentencing Database. The available statistics indicate a broad range of sentences—the 80 per cent range is about two and a half to six years’ imprisonment.
For the lesser offence of recklessly inflicting grievous bodily harm (maximum penalty 13 years’ imprisonment), there is also limited statistical information for the period to February 2019. About half of all offenders received a sentence of full-time imprisonment, often in the range of two to four years’ imprisonment.
Other sentencing considerations
In sentencing the offender, I am required to consider the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT) insofar as they are known and relevant. I have referred to the relevant factors above.
Relevant sentencing purposes include punishment, specific deterrence, general deterrence, accountability, denunciation, and recognition of harm to the complainant. Based on his criminal history, the offender’s prospects of rehabilitation are somewhat guarded. However, he has now been drug-free for a significant period, and drugs appear to have been implicated in prior offending. As the offender’s prospects of rehabilitation are not unreasonable, I will take them into account in fixing the non-parole period.
I am satisfied that the only appropriate sentence is one of imprisonment, and the objective seriousness of the offence and the offender’s subjective circumstances mean that it must be a sentence a full-time imprisonment.
Sentence
The offender is sentenced to three years and nine months’ imprisonment (from starting point of five years’ imprisonment), from 1 November 2020 to 31 July 2024.
The starting date takes account of the fact that the offender spent 23 days in custody in relation to the subject offence and his parole was revoked from 25 August 2020 solely because of the commission of the subject offence.
Together with a sentence that he is now serving, the offender has a total sentence of three years and 11 months’ imprisonment, from 25 August 2020 to 31 July 2024.
Taking that whole period into account, together with the fact that the offender’s prospects of rehabilitation are not unreasonable, I fix a nonparole period of 26 months to expire on 24 October 2022.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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