R v Collier

[2022] ACTSC 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Collier

Citation:

[2022] ACTSC 18

Hearing Date(s):

7 February 2022

DecisionDate:

7 February 2022

Before:

Elkaim J

Decision:

See [21]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – offence committed in custody

Legislation Cited:

Crimes Act 1900 (ACT) s 20
Crimes (Sentencing) Act 2005 (ACT) ss 64, 72

Cases Cited:

R v Bedford [2019] ACTSC 282
R v Collier (No 2) [2021] ACTSC 177

Parties:

The Queen ( Crown)

Norman Collier ( Offender)

Representation:

Counsel

M Howe ( Crown)

S McLaughlin ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Offender)

File Number(s):

SCC 268 of 2021

Elkaim J

1. On 16 November 2021, Mr Collier pleaded guilty to the offence of recklessly inflicting grievous bodily harm pursuant to s 20 of the Crimes Act 1900 (ACT). The maximum penalty is 13 years’ imprisonment.

1. As at 4 October 2020 the offender was an inmate at the local prison, the AMC. He was on remand pending sentencing for various matters. This has occurred. He was also at the time subject to a 12-month Good Behaviour Order which has since been cancelled by Loukas-Karlsson J (R v Collier (No 2) [2021] ACTSC 177). Her Honour sets out the background to her orders as well as some subjective factors described in a Pre-Sentence Report dated 14 July 2021.

1. The offender is in prison now because of sentences imposed by Magistrate Theakston on 2 September 2021. He received a head sentence of two years and one month which will expire on 31 January 2023. A non-parole period was due to expire on 19 April 2022. However because of the effects of the relevant legislation (in particular ss 64 and 72) of the Crimes (Sentencing) Act 2005 (ACT), the offender has lost the ability to seek parole after 19 April this year.

1. The parties agreed, from a technical point of view, that the effect of the above legislation is that the sentence that I impose should commence on 1 February 2023 and should not include a non-parole period. However the sentence may be suspended after a particular period of time.

1. In respect of the current offence, on 4 October 2020 the offender assaulted another inmate who allegedly owed another person some money. The other person was also a creditor of the offender and had persuaded, perhaps somewhat forcefully, the offender to put pressure on the victim in respect of the debt.

1. I viewed the CCTV footage of the beginning of the incident. Clearly the action was premeditated although perhaps not sophisticated. After following the victim into his cell he hit him on his head so that he fell to the ground where the assault continued. He used his feet to continue the assault on the victim’s head. He then poured boiling water over the victim. Before leaving he threatened the victim about reporting the assault. The victim obeyed but the burns to his body blistered overnight and he sought assistance.

1. The victim was taken to hospital. Examination revealed a fracture to his face, assorted bruises and second degree burns to 30% of his body. The injuries are described in detail in the report of Dr French dated 2 June 2021. The doctor notes the likelihood of permanent scarring arising from the burns. There is however no up-to-date information on the injuries.

1. The injuries are unquestionably serious but perhaps not as serious as might be envisaged in the range of injuries that are often considered in relation to this offence. Ultimately I think the objective seriousness of this offending lies somewhere just below medium.

1. The Crown referred me to a number of other cases, all of which have points of distinction to the present matter. Perhaps the closest is R v Bedford [2019] ACTSC 282 in which Mr Bedford received a sentence, after reduction for a discount, of five years imprisonment. However, as conceded by the Crown, the injuries suffered by the victim in Bedford were more serious. I agree that this was, as described by the Crown, an act of brutality carried out on an unsuspecting and vulnerable detainee.

1. The offender was born in 1993. He has a criminal record in the ACT and in New South Wales. There are a number of violent offences.

1. Offences that occur in a prison, as a matter of public deterrence, almost automatically require a harsh result. Victims are essentially trapped within the walls of the prison in company with their assailant. In addition threats, as in this case, are often made to secure the silence of the victim who knows that he or she will remain in close proximity to the attacker.

1. The legislature has indicated the severe nature of this type of offending by dictating that a non-parole period may not be set for offences that occur in custody (s 64 of the Crimes (Sentencing) Act 2005 (ACT)).

1. The offender was born in Queanbeyan and is of Aboriginal heritage. He was brought up by his mother who unfortunately had problems with alcohol. She could not prevent him being abused by her associates.

1. When he was 14 the offender went to live in New Zealand with his father. He came back two years later and returned to live with his mother. The relationship has since been terminated. The offender has a positive relationship with his father.

1. The offender left school early to seek employment. He has had a number of jobs, including in the construction industry. He suffered an injury to his wrist in 2019 following an assault which has impeded his capacity to work.

1. The offender is a long-time user of cannabis and has also, for some years, been taking methamphetamines.

1. The offender pleaded guilty to the current offence and is entitled to a discount, which I assess at 25%.

1. Mr McLaughlin, who appeared for the offender, emphasised that he is a relatively young man and that rehabilitation remains a factor in his sentencing. He pointed out that there had been a significant delay in the matter coming to court and, as noted above, he has been deprived of the opportunity to apply for parole in April of this year. Moreover because his sentence will only start next year, it was submitted that the Court should be concerned not to impose a sentence which amounts to a crushing of any hope for the future.

1. I think the points made by Mr McLaughlin are valid and I will take them into account.

1. I think an appropriate sentence is four years imprisonment which, after the reduction of 25%, is lowered to 3 years. I also think it appropriate to suspend the sentence after two years in order to give the offender some hope for rehabilitation. He should however be acutely aware that the legislature wishes people committing this type of offence in prison to be treated with little leniency. Public deterrence is also of course very relevant here.

1. I make the following orders:

(i)The offender is sentenced to 3 years imprisonment to commence on 1 February 2023 and end on 31 January 2026.

(ii)The above sentence of imprisonment is suspended from 31 January 2025 on condition the offender enter into a Good Behaviour Order, on core conditions, for a period of 12 months.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim

Associate:

Date: 7 February 2022