R v Bartlett No. DCCRM-01-1207

[2002] SADC 142

R v BARTLETT
[2002] SADC 142

Judge Lunn
Criminal

REASONS FOR PENALTY

1. Fraser Charles Bartlett pleaded guilty in this Court on 5 November 2002 to the offence of unlawful wounding.  The DPP accepted that plea in satisfaction of the Information charging him with wounding with intent to do grievous bodily harm.

2. On the night of 20 May 2001 the 17 year old, male, victim went with a group of friends to the Mansions Hotel/Night Club in Pulteney Street Adelaide.  In his group was a girl who had previously had a romantic relationship with Bartlett’s younger brother, Daniel, but the girl had broken off that relationship a few months before.  On that night Daniel had spoken with the girl and believed there was a prospect of resuming the relationship.  The victim, who was unknown to Bartlett or his brother, was standing in the hotel talking to the girl.  Bartlett was close by drinking beer and was very intoxicated.  Daniel mistakenly believed the victim was a male he had earlier seen kissing the girl.  Daniel came up to the victim and pushed him in the chest causing him to fall onto the floor on his back.  Some other males in the group with which the victim had come to the hotel were nearby and stood up when the victim was pushed over.  Bartlett also immediately came across to where his brother was standing over the victim.  Bartlett then impulsively threw a beer glass which he was holding at the victim who was still on the floor.  The glass hit the victim on the left side of his face.  The impact of the glass with the victim’s face broke the glass and the jagged edges caused major gashes to the face.  Unfortunately the police were unable to find the glass and it is unknown how strong it was or in what manner it shattered.  Nevertheless, it is an inescapable inference which is proved beyond reasonable doubt that Bartlett must have thrown the glass with considerable force to cause it to break upon impact with the victim’s face.  It is not established that Bartlett intended to cause the grievous bodily harm which the victim suffered as a result of being hit by the glass.

3. The victim suffered one large deep laceration down his cheek about 5 inches long which severed a saliva gland.  He had another deep laceration to his left ear and two superficial lacerations on his left temple. Initially the wounds bled profusely.     He underwent surgery for repair of the wounds shortly after the attack.  He had 34 external and 24 internal stitches inserted in his face.  He also suffered a chipped front tooth.  He was in hospital for two days.  He has incurred substantial medical expenses, the bulk of which have been met by insurance.  He will need to undergo further plastic surgery and dental treatment, but he will still be left with some slight permanent scarring and facial disfigurement.  Understandably he has suffered embarrassment and anger and both he and his immediate family have suffered considerable anguish and distress.

4. Bartlett was 21 years of age at the time of the offence and is now 22 years of age.  He has a significant record for relatively minor drug, public disorder and dishonesty offences, but he has never previously been jailed.  In 1996 as a youth he had two appearances in the Youth Court for assaults where he was given bonds without convictions, but otherwise he does not have a record for offences of violence.

5. Bartlett’s parents separated when he was aged 11.  This had an adverse effect on his behaviour.  He has dyslexia and is not fluent in literacy or numeracy.  He has a history of abuse of alcohol, cannabis and amphetamines, but this has significantly diminished since the offence.  He has a sporadic work history.  He has had some casual work in recent times as a painter and decorator, but he has as yet been unsuccessful in obtaining an apprenticeship as a painter and decorator.  He hopes to undertake some studies in 2003 in this field and to obtain an apprenticeship.

6. Although the plea was only entered on the day on which his trial was to commence, Bartlett had offered during the course of the committal proceedings to plead to unlawful wounding, which offer was then refused by the DPP.  Accordingly, he is entitled to a discount for his plea as if it had been entered at the earliest opportunity: Cameron v R (2002) 187 ALR 65. Bartlett is contrite for the offence and has apologised to the victim.

7. The maximum penalty for the offence of unlawful wounding is imprisonment for 5 years.

8. This is a serious offence of unlawful wounding.  It was a vicious and unprovoked attack on a defenceless person in a public place.  Bartlett’s substantial intoxication is probably the explanation for it, but it is no excuse in law.  The victim has suffered substantial injuries and will bear the scars of them for life.  Regrettably these types of assaults in hotels and similar venues are common and there needs to be a strong element of general deterrence in the sentence to be imposed in the interests of the safety of patrons of such places.

9. There was no dispute that a substantial prison sentence has to be imposed for this crime.  The starting point is imprisonment for 2 years, but because of the early offer to plead to the lesser offence of unlawful wounding that will be discounted to a sentence of imprisonment for 18 months.

10. Bartlett’s counsel urged me to suspend the sentence. The prosecutor neither supported nor opposed this submission and left it to my discretion. In considering whether there is sufficient “good reason” under s38(1) of the Sentencing Act to suspend the sentence, I have regard to Bartlett’s relatively young age, his lack of any significant record for previous offences of violence, the impulsive nature of the offence, the effect actual imprisonment may have on his career prospects, his contrition and the other matters put forward in mitigation by his counsel. However, these factors do not amount sufficient “good reason” to suspend when weighed against the seriousness of the offence, its major long term adverse consequences for the victim and the need for general deterrence. Accordingly, I decline to suspend the sentence. However, the matters put forward by Bartlett’s counsel do cause me to fix a substantially less than usual non-parole period in the hope that a long period on parole will assist him in his continued rehabilitation. The non-parole period is fixed at 6 months. Both the sentence and the non-parole period are to run as from today.