R v Crawford

[2019] ACTSC 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Crawford

Citation:

[2019] ACTSC  8

Hearing Date:

31 January 2019

DecisionDate:

1 February 2019

Before:

Elkaim J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm

Legislation: 

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10

Crimes Act 1900 (ACT) s 20

Cases

Osborne v The Queen [2015] NSWCCA 260

R v Dunn [2017] ACTSC 227

R v EL [2016] ACTSC 241

R v McNeill [2018] ACTSC 125

R v Sharma [2016] ACTSC 180

Parties:

The Queen (Crown)

Tiarni Crawford (Offender)

Representation:

Counsel

Ms R Khazma (Crown)

Mr G Mansfield (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aboriginal Legal Service (NSW / ACT) Ltd (Offender)

File Number:

SCC 303 of 2018

ELKAIM J:

1. On 3 December 2018, the offender pleaded guilty to recklessly inflicting grievous bodily harm on Mr Nicholas Smith on 17 February 2018.

1. This is an offence contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty is 13 years’ imprisonment or, for an aggravated offence, 15 years’ imprisonment. The offence involved what is commonly known as a ‘glassing’ assault. On 17 February 2018, the victim, Mr Smith, was involved in an altercation with the offender’s partner, Mr Williams. Mr Williams had somehow come to be on the ground.

1. Motivated by alcoholic consumption, and putting aside any semblance of common sense, the offender intervened in the situation and hit the victim on the left side of his face with a glass cup. The glass broke and the victim suffered serious injury. The attack is plainly visible on the CCTV footage that was tendered (Exhibit B).

1. The injuries were concentrated around Mr Smith’s left eye. He has suffered permanent damage to his eyesight which has resulted from a ruptured globe and leakage of the vitreous gel from within his eye. He also suffered scarring to his face. He has required four operations and has so far not regained complete vision in his left eye. He may never regain full vision and will require further surgery, in particular for the removal of a cataract.

1. In addition, the cuts to his face required repair and he now has the appearance of a drooping eye. I have seen the photographs of the injury and of the scarring that remains. Fortunately the scar has faded to some degree.

1. I have also read the victim impact statement prepared by Mr Smith. In his statement he describes the many effects that he has endured as a result of and since the attack. Besides the physical injuries he has succumbed to depression and an incapacity to re-join the social and sporting life he enjoyed before the attack. The treatment has been very expensive as well as inconvenient both to him and his parents. He has been forced to take a great deal of time off work and his plans to purchase a house have suffered. It is an indication of Mr Smith’s decency that he has taken advantage of his victim impact statement to thank the police, ambulance and hospital staff who assisted and cared for him.

1. Mr Smith’s father read a victim impact statement to the court. He described what his son had been through and also spoke of earlier health problems his son had encountered. He said that when this incident occurred his son had gained a level of independence and was enjoying his freedom from his earlier difficulties. The offender would obviously not have known of these earlier health issues but an assailant must take their victim as they are found.

1. The offender was born in 1992. She is of Aboriginal heritage. Her father died when she was about five years of age and she was raised by her grandmother who passed away in 2012.

1. The offender has a five-year-old daughter for whom she cares. She also is her mother’s carer. Her mother stopped caring for the offender when she was very young. However in 2017 she reappeared and came to live with the offender. She is mentally disabled and requires full-time care. The offender now also assists in the care of an elderly friend.

1. The offender is in a long-term relationship with Mr Williams, who is the father of her child. Mr Williams apparently drinks too much and finds himself in situations where the offender has thought it necessary to extricate him. On one occasion in May 2017 intervention by the offender led to her leg being broken. There are pins and a plate now in her leg.

1. The offender left school after Year 10 but does not seem to have received a leaving certificate. She has completed a Certificate III in community service and has had some employment in childcare. She has not worked since becoming pregnant with her daughter in 2013.

1. The offender has been consuming alcohol for some time and quite clearly has done so to excessive levels. She used cannabis until she became pregnant, but has since ceased.

1. The offender has pleaded guilty and has expressed remorse for her actions. There are a number of references tendered by the offender. They describe a very different person to the type of person who would conduct an attack like that inflicted upon Mr Smith. I have the clear impression that the attack was out of character. It graphically illustrates the consequence of drinking too much alcohol. This of course does not excuse it, but is a factor that I can take into account.

1. The offender gave evidence and I was impressed with the sincerity of her remorse. What is overwhelmingly obvious in this case is that the scourge of alcohol from time to time takes over her life and leads her into trouble. The trouble extends to trying to assist her partner. Her partner must also realise that his actions play a part in those of the offender.

1. The offender does good things in society but she must deal with her alcohol problem so that the good she does is not overwhelmed and destroyed by the violence that she is capable of. I have no doubt that she has the capacity to rehabilitate herself by controlling, or better still entirely abandoning, the use of alcohol. In the orders I make I will try to ensure that she attends proper alcohol reduction programs.

1. The offender does have a criminal record but I do not think it impacts upon sentencing for the current offence.

1. Sentencing involves consideration of the principles and objects of sentencing as expressed in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is important because it says a person should not be sent to prison except as a last resort.

1. The Crown referred me to a number of authorities from which it suggested I might gain some guidance. The authorities (R v Dunn [2017] ACTSC 227, R v Sharma [2016] ACTSC 180, R v McNeill [2018] ACTSC 125 and R v EL [2016] ACTSC 241) are all useful but each contains its own facts which distinguishes it from the current matter.

1. The Crown submitted that a period of full-time imprisonment was necessary, drawing on my comments in Sharma and in particular the judgment in Dunn. An important difference with Dunn however is that the offender had a history of violence. Sharma is perhaps closer to the current matter although the subjective factors present in this case do not exist in Sharma.

1. This case is an example of the more difficult scenarios faced by a sentencing judge. On the one hand a young person with a child apparently doing her best to raise that child and to look after her mother, and others, in an out of character moment, inflicts a serious injury on another person. On the other hand that injury is so serious that the person will be affected for the remainder of his life. Eyesight is a very precious sense and its injury must be taken very seriously. So too must all of the other effects that have been suffered by the victim.

1. In addition there is a need to ensure public deterrence as well as to bring home to this offender the wrongfulness of her conduct and to make sure, as far as possible, that she does not engage in any similar conduct in the future. I entirely agree with this statement made by Wilson J in Osborne v The Queen [2015] NSWCCA 260 at [82]:

There remains a continuing need for the courts to emphasise the horror with which the community views the use of a glass as a weapon, particularly when the glass is wielded with force at the head or face of another. Such offences must be strongly denounced, and others deterred from committing like crimes by the imposition of stern sentences.

22.  But for her subjective circumstances, and the prospects of her rehabilitation, I would have had no hesitation in imposing a sentence of full-time imprisonment. I will impose a sentence of imprisonment but it will be suspended on condition the offender agrees to a Good Behaviour Order for two years. The period of imprisonment will be 18 months which has been reduced from 24 months (25%) due to the plea of guilty.

23.  I make the following orders:

(a)In relation to the offence of recklessly inflicting grievous bodily harm (CC18/8925), the offender is sentenced to 18 months imprisonment to commence today and end on 31 July 2020.

(b)The sentence of imprisonment is suspended with immediate effect on condition the offender enter into a Good Behaviour Order for a period of 24 months and comply with her obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that she accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 24 months or such shorter time as the Director-General decides. The Good Behaviour Order is subject to the following additional condition that the offender engage in such programs as the Director-General decides in respect of alcohol abuse.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: