R v Daniel (No 2)
[2021] ACTSC 117
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Daniel (No 2) |
Citation: | [2021] ACTSC 117 |
Hearing Date: | 29 April 2021 |
DecisionDate: | 15 June 2021 |
Before: | Loukas-Karlsson J |
Decision: | The offender is sentenced to imprisonment for a period of 3 years and 6 months, to be served by way of intensive correction order with a community service work condition and a condition to engage in programs as directed by ACT Corrective Services. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Causing grievous bodily harm – “one punch” attack – assistance in administration of justice through offer to plead guilty to offence ultimately found guilty of – intensive correction order imposed – community service work condition |
Legislation Cited: | Crimes Act 1900 (ACT) ss 20, 25 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35, 35A Crimes (Sentencing Procedure) Act 1999 (NSW) s 25E |
Cases Cited: | Blackwell v The Queen [2011] NSWCCA 93; 81 NSWLR 119 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 The Queen v Kilic [2016] HCA 48; 259 CLR 256 |
Texts Cited: | Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 New South Wales, Parliamentary Debates, Legislative Council, 11 October 2017 |
Parties: | The Queen (Crown) Zane Daniel (Offender) |
Representation: | Counsel M Howe (Crown) M Kukulies-Smith (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number(s): | SCC 39 of 2020 |
LOUKAS-KARLSSON J
Introduction
On 4 December 2020 a verdict was returned finding Zane Daniel (the offender) guilty of causing grievous bodily harm to Mr Fernandis (the victim) following a trial by judge alone. The offender had pleaded not guilty to a charge of recklessly inflicting grievous bodily harm: see R v Daniel [2021] ACTSC 64 (R v Daniel). The verdict of guilty was in relation to the offence of causing grievous bodily harm, being the statutory alternative to the offence of recklessly inflicting grievous bodily harm.
Pursuant to s 25 of the Crimes Act 1900 (ACT) (Crimes Act), the maximum penalty for the offence of causing grievous bodily harm is imprisonment for 5 years.
Facts
The factual matters are addressed in R v Daniel at [21]-[25] which sets out the prosecution case and at [48]-[50] which sets out a summary of the CCTV footage. These paragraphs are repeated here for completeness.
The Prosecution Case
On 17 August 2019, the offender was playing pool at Civic Pub with his partner, Ms Horan, and friends, Ms Hazel and Mr Dash. The victim attended Civic Pub on the same evening with his girlfriend and two friends. The two parties were unknown to each other.
There had been some tension earlier in the night as Mr Fernandis’ group wished to use the pool table being used by the offender and his friends. Mr Fernandis’ group ultimately began playing pool at a table adjacent to the offender’s pool table. The victim’s girlfriend, Ms Tabjan, and the offender were taking pool shots at their respective tables, and their pool cues were getting in the way of each other. Ms Tabjan, after the offender’s pool cue got in the way, moved her own pool cue up, before lowering it again and waiting for the offender to take his shot before she could take hers. The offender’s girlfriend, Ms Horan, saw the interaction and said to Ms Tabjan, “Really?”.
The victim then walked around his own table, so that he was across the table from Ms Horan, and started speaking to Ms Horan. The offender was standing next to the victim at this point. The offender turned to the victim, grabbed the front of the victim’s shirt with his left hand, and punched the victim to the left side of his face with his right hand. He then struck the victim to the throat area. The victim immediately fell backwards to the ground, unconscious.
The offender turned back to his group and finished his drink, before he and his friends attempted to leave.
CCTV Footage
The CCTV footage variously depicts the pool room, the main bar area, the outside entrance, and the lounge area at the Civic Pub on the evening of 17 August 2019. The offender and the victim are both depicted in the pool room footage playing games of pool with their respective groups. The pool tables that they are playing on are spaced close together. The offender and Ms Tabjan come into slight contact at 10:18PM as they both attempt to play a shot at their respective tables at the same time. The offender appears to be startled by Ms Tabjan, who then stands back and allows the offender to take his shot. The victim then passes closely between Ms Tabjan and the offender, brushing against the offender from behind as he does so.
The CCTV footage clearly shows words being exchanged between the victim and Ms Horan. The offender then grasps the victim by the front of his shirt with his left hand, pushing him backwards towards a third pool table. While still holding the victim, the offender strikes the victim to the side of his face with a closed right fist, and then immediately strikes him again with a left fist, and the complainant falls to the floor.
The victim remained on the ground until paramedics arrived and transported him to the hospital. The victim presented at the hospital with clinically significant and life-threatening injuries. Active resuscitation was required in order to preserve his life. His injuries included a severe traumatic brain injury with associated post-traumatic amnesia lasting 38 days. The victim was hospitalised for 75 days, including 7 days in the Intensive Care Unit.
Victim Impact
There is no Victim Impact Statement before the Court. The Court obviously does not need a Victim Impact Statement to acknowledge the extremely serious consequences for the victim of this offence, including severe traumatic brain injury and hospitalisation for 75 days.
The prosecution submitted that despite not having the benefit of a Victim Impact Statement, the impact on the victim in this matter is obvious and grave: s 33(1)(e) and (f) Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act). This submission must be accepted by the Court.
The Court recognises the serious and long-lasting effects of this crime on the victim and acknowledges the significant impact that the offence has had on the victim and will continue to have. This is a life changing event.
While the Court did not receive a Victim Impact Statement as stated above, the Court did receive a Forensic Medical Report dated 12 March 2020 at the trial and an Additional Forensic Medical Report dated 3 December 2020 at sentence. Both reports were under the hand of Dr A. Jane Van Diemen.
The opinions expressed by Dr Van Diemen in the Forensic Medical Report dated 12 March 2020 were based on the victim’s medical documentation and records, as well as the CCTV footage of the offence itself.
A summary of Dr Van Diemen’s opinions in the Forensic Medical Report is set out in R v Daniel at [32]-[36]. Again, it is repeated here for completeness.
The victim presented to the Canberra Hospital on 17 August 2019 with clinically significant and life-threatening injuries. Active resuscitation was required in order to preserve his life. The victim’s injuries included:
(a)A severe traumatic brain injury with diffuse axonal injury;
(b)Traumatic subarachnoid haemorrhage overlying the left temporal lobe;
(c)Contrecoup subdural and subarachnoid haemorrhage overlying the right frontotemporal region;
(d)Bilateral basal ganglia haemorrhage;
(e)Left sided temporal bone fracture with associated hemotympanum and ossicular canal disarticulation;
(f)Scalp haematoma overlying the left temporoparietal region;
(g)A head abrasion; and
(h)Bruising over the left and right clavicles.
The victim spent seven days in the Canberra Hospital Intensive Care Unit, including three days in an induced coma. He required the insertion of a right frontal lobe intracranial pressure monitor which was subsequently removed; which would result in permanent scarring. The victim experienced post-traumatic amnesia for 38 days following the incident and required admission to the Liverpool Hospital Brain Injury Rehabilitation Unit.
Following admission to the Liverpool Hospital Brain Injury Rehabilitation Unit, the victim was documented to have the following ongoing deficits: higher level physical impairments; impairments related to memory recall, speed of information processing, and complex planning; impairments in conversation and communication; and a reduction in social skills. At the time of writing the Forensic Medical Report, Dr Van Diemen opined that whether the foregoing deficits would be of a temporary or a possible permanent nature would become evident with time.
The Additional Forensic Medical Report dated 3 December 2020 was updated at the request of the prosecution to see how the victim’s injuries had progressed over the preceding 12 months. The opinions of Dr Van Diemen in the Additional Forensic Medical Report were again based on the medical documentation and records of the victim and were to be read alongside the previous Forensic Medical Report.
In the Additional Forensic Medical Report, the healthcare records of the victim between 18 November 2019 to 18 July 2020 were reviewed to document the ongoing clinical effects and complications resulting from the victim’s significant head injuries. In light of these records, Dr Van Diemen made the following observations about the ongoing impact of the victim’s injuries:
(a) Mild to moderate hearing loss in left ear (at 2000Hz frequency upwards);
(b) Tinnitus (abnormal ringing in the ear/s);
(c) Difficulties in managing complexity of tasks;
(d) Impaired memory;
(e) Difficulties in inferring information and providing information;
(f) Errors in task sequencing;
(g) Mild cognitive impairment;
(h) Mild slowing of cognition in response to complex questioning;
(i) Anxiety related to court process;
(j) Fatigue (mental and physical); and
(k) Intermittently reduced energy levels.
Dr Van Diemen noted that functional recovery from severe traumatic brain injury occurs slowly and maximal recovery may not occur for 12-18 months after the injury. The documentation reviewed by Dr Van Diemen did not extend to 12 months post-injury or beyond. However, Dr Van Diemen stated that recovery to the level of pre-morbid function may not occur.
Objective Seriousness
Prosecution Submissions
The prosecution submitted that the objective seriousness of an offence of causing grievous bodily harm is to be determined in reference to the culpability of an offender’s conduct and the seriousness of the harm occasioned to the victim.
In relation to culpability, the prosecution submitted that the following matters informed the objective seriousness of the present offence:
(a) The offender delivered an unanticipated, unprovoked, forceful punch to the victim’s head, rendering him immediately unconscious.
(b) The head is a vulnerable part of the body.
(c) By its nature, conduct of this kind assumes greater objective seriousness than other negligent acts that might be the subject of a charge pursuant to s 25 of the Crimes Act.
(d) The objective CCTV evidence showed that the victim was trying to placate the situation.
(e) The assault was impulsive and involved a single strike.
In relation to the grievous bodily harm, the prosecution submitted that the following facts informed the objective seriousness of the offence:
(a) The victim suffered, inter alia, a life threatening severe traumatic brain injury with associated post traumatic amnesia.
(b) The victim was hospitalised for 75 days, inclusive of 29 days at the Liverpool Hospital Brain Injury Rehabilitation Unit, and 7 days in the Canberra Hospital Intensive Care Unit.
(c) As at December 2020 (approximately 16 months after the offence), the victim continued to suffer, inter alia: mild to moderate hearing loss, cognitive impairment, difficulty in managing complex tasks, and impaired memory.
The prosecution noted that the injuries in the present matter were not in the same category as the injuries in R v Islam [2011] ACTSC 32, where the victim was made a tetraplegic. However, it was submitted that the injuries suffered by the victim in the present matter were still in the upper end of the spectrum of grievous bodily harm.
The prosecution submitted that the offender’s culpability and the nature of injuries that formed the grievous bodily harm rendered the offence to be within the upper range of objective seriousness for an offence of causing grievous bodily harm.
In oral submissions, counsel for the prosecution noted that the prosecution’s assessment of the objective seriousness of the offence was higher than that suggested by defence as a result of the offence for sentence being causing grievous bodily harm as opposed to recklessly inflicting grievous bodily harm (T18.39-44).
In response to the offender’s submission that the offence would be more serious if it involved the use of a weapon or multiple blows, counsel for the prosecution conceded the increased seriousness in such circumstances. However, counsel for the prosecution further noted that such conduct would usually be particularised as an offence of recklessly inflicting grievous bodily harm or even intentionally inflicting grievous bodily harm. It was submitted that the act of a single forceful punch to the head is above the mid-range in terms of the conduct that is encapsulated by the offence of causing grievous bodily harm (T19.12-23).
Defence Submissions
The offender noted the case of R v Myles [2017] ACTSC 194 (R v Myles), which involved a single charge of recklessly inflicting grievous bodily harm. The offender in R v Myles had delivered a single punch to the victim in the lower right jaw with a closed fist. The punch did not cause the victim to fall to the ground, notwithstanding the force applied. In R v Myles at [13] Murrell CJ observed:
… It is true that the conduct involved in a single punch may be of somewhat lower objective seriousness than a sustained attack, but a punch to the face is an obviously dangerous act, as the face is the most vulnerable area of the body…
The offender also referred to R v Alaragi [2020] ACTSC 77 (R v Alaragi), which involved a single charge of causing grievous bodily harm. The offender in R v Alaragi had bitten off the top of his housemate’s ear. In R v Alaragi at [11] Mossop J noted:
The objective seriousness of the offence must be assessed having regard to the offender’s conduct and the nature of the grievous bodily harm sustained. The offending involved an unprovoked attack upon the offender’s housemate. It was clearly an unlawful act for the purposes of s 25. The injury sustained was grievous bodily harm because it involved the permanent severance of a part of the victim’s body. Further, that severance has resulted in permanent and prominent disfigurement. Having said that, the nature of the injury was not life-threatening and did not cause permanent damage to a bodily function. In those circumstances, and having regard to the breadth of possible grievous bodily harm, I consider the offending to be in the lower end of the mid-range of objective seriousness for this offence.
In light of the foregoing cases, the offender submitted that this offence was at the mid-level of objective seriousness. While the offender conceded that the injury in the present matter was significant, it was noted that it was occasioned by a single punch without premeditation.
The offender noted that the offence of causing grievous bodily harm does not require any aversion by an offender to the possible consequences of their actions, as opposed to the offence of recklessly inflicting grievous bodily harm. It was submitted that the offender is to be sentenced on the basis that he did not appreciate the consequences at the time he enacted the punch to the victim’s head.
In oral submissions, counsel for the offender accepted that in relation to the degree of harm, it included a permanent brain injury for the victim (T10.43-45). It was submitted that while it was not a completely incapacitating brain injury, there was no doubt that it the brain injury had day-to-day effects for the victim (T10.47 & T11.1-4).
Counsel for the offender also stated that he did not cavil with an assessment that the injuries were above the mid-range level and approaching the upper level of grievous bodily harm because of the ongoing nature of the injury and the damage was inflicted to a fundamental organ, being the brain (T11.6-12).
It was submitted that the current matter was not at the highest level of objective seriousness as the offender had not administered multiple blows, the blow was only with a fist and not with the use of a weapon and that the Court could not safely infer that the strike was a maximum force punch solely from the fact that the victim was rendered unconscious (T12.1-7 & T13.3-8,12-18).
Consideration
I have considered the submissions of both prosecution and defence as to objective seriousness. In many respects, the submissions are broadly aligned. In my view, the objective seriousness of the offence is at the upper level. A punch to the face is an obviously dangerous act. In my view, that factor combined with the severe brain injury leads inexorably to that conclusion.
It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24], see also The Queen v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I accept the features identified by the prosecution as set out above.
Criminal History
The offender has no prior criminal history. I accept that the offender is a person of prior good character.
Intensive Correction Order Assessment Reports
When this matter came before me on 30 September 2020, I determined that I should give serious consideration to the sentence being served by way of intensive correction order (ICO). To that end, I referred the offender for assessment.
The ICO Assessment Report dated 27 November 2020 states that the offender reported he is the eldest of two siblings. The offender’s father is of Tongan heritage. The offender reported that he enjoys a supportive relationship with his parents and sibling. He stated that he has been in a long-term relationship for approximately 10 years and described the relationship as stable and positive.
The offender reported that he completed Year 12 and completed his Certificate III in Electro-Technology from the Canberra Institute of Technology. The offender is currently working fulltime as an electrician.
The report notes that the offender did not report any problematic alcohol use and that the offender stated he consumed five or six standard alcoholic drinks monthly or less. The offender acknowledged that he had consumed four to five standard drinks at the time of the offence but clarified that it was not a factor which contributed to his offending behaviour.
The offender stated that he commenced using cocaine at the age of 21 and reported fortnightly use by the age of 23. The offender stated that he had not used cocaine since May 2020 and he has outgrown it. However, some of the offender’s friends continue to consume cocaine at parties. The offender further disclosed that he started using methylenedioxymethamphetamine (MDMA) at the age of 19. The offender stated that he had only used MDMA on 3 occasions, the last time in April 2019.
The offender reported that he is currently residing with his partner and her parents in Carwoola in New South Wales. The report noted that ACT Corrective Services cannot effectively supervise an ICO for an offender who resides in NSW due to difficulties with administering the order, such as conducting home visits.
The offender confirmed that he would be able to relocate to his mother’s home in Canberra if he was to be sentenced to an ICO. The report confirmed that the offender’s mother was willing to accommodate the offender and that the proposed accommodation had been verified.
In relation to the offender’s attitude to the offence, the offender acknowledged that his behaviour was influenced by his anger at the time. The offender stated that he should not have behaved in the manner that he did. The offender reported that he understood the seriousness of his offending behaviour and expressed regret over his actions. The report noted that the offender did not minimise his offending behaviour.
The report assessed that the offender had been assessed as a low risk of general re-offending in light of the offender’s alcohol and drug use, anti-social companions, and lack of prosocial leisure activities. The report confirmed that the offender had been assessed as suitable for undertaking community service for a community service work condition to form part of an ICO.
The report concluded that the offender had demonstrated commitment to successfully complete an ICO by consistently engaging with ACT Corrective Services to complete the assessment. The offender was assessed as suitable for an ICO, provided he resides at his mother’s address in Canberra. An ICO would target the following factors associated with the offending: alcohol and drug use issues, anti-social companions and the lack of prosocial leisure activities.
The report recommended that if an ICO was ordered, it ought to include an additional condition that the offender must engage in programs as required by ACT Corrective Services to address his criminogenic needs.
ICO Assessment Reports are valid for 3 months from the hearing date. As such, on 15 April 2021 an updated ICO Assessment Report was ordered.
The updated report dated 22 April 2021 reassessed the offender’s suitability for an ICO and concluded that the information contained in the original report dated 27 November 2020 remained up to date. There had not been a change to the offender’s circumstances nor a change to the recommendation.
Subjective Circumstances
Prosecution Submissions
The prosecution acknowledged that the offender did not have a criminal history and that apart from the offending, he is a contributing member of society: s 33(1)(m) Crimes (Sentencing) Act.
In relation to the offender’s reason for offending s 33(1)(v) Crimes (Sentencing) Act, the prosecution noted that the offender had initially suggested that his reason for striking the victim was a pre-emptive strike. During evidence at the trial, it was then suggested that he struck the victim so as to get him to cease the verbal abuse of his partner and go away. The prosecution noted that in the ICO Assessment Report dated 27 November 2020, the offender reported that his behaviour was influenced by anger.
The prosecution accepted that the offender may be remorseful for his actions: s 33(1)(w) Crimes (Sentencing) Act.
It was submitted that there is no evidence before the Court to show any probable hardship, should the offender be sentenced to a period of fulltime imprisonment: s 33(1)(o) and (r) Crimes (Sentencing) Act.
The prosecution further noted that while the offender was drinking alcohol prior to the commission of the offence, the offender had disavowed any suggestion that his alcohol consumption had influenced his offending: s 33(1)(p) Crimes (Sentencing) Act.
Defence Submissions
Counsel for the offender noted that the offender comes before the Court as a 26 year old man with no criminal history. The offender is employed fulltime as an electrician, which is confirmed in a reference letter detailed below. The offender is in a stable relationship and has close support from his partner, with whom he currently lives.
It was submitted that the offender’s behaviour was evidently out of character, noting that the offender does not have a prior criminal history and other than this offence, is of positive good character.
Counsel for the offender submitted that the offender has expressed genuine remorse and empathy for the victim. In oral submissions, counsel for the offender made reference to the offender’s record of interview and a portion of which that was extracted in R v Daniel at [44] where the offender was asked “when he’s on the ground, what were you thinking?”:
Part of me was a bit worried at the way he fell. I did see he was – kind of like when boxers are knocked down, they just kind of fall, stiffen up a little bit. That made me know he was unconscious. Um yeah. So, part of me was like, oh shit, but yeah, so, I’m not happy with what happened pretty much, ah, I definitely know there was a way round that.
Counsel for the offender submitted that the foregoing statement reflected the offender’s remorse and contrition as the offender had been frank about his actions and concern for the circumstances the victim was placed in (T8.31-34).
When queried that such concern was not immediately apparent on the CCTV footage of the incident, counsel for the offender accepted this and acknowledged that the offender vacated the pool room and stood with security (T8.39-43).
Counsel for the offender acknowledged that the offender did not attempt to render assistance to the victim. However, it was submitted that the offender’s actions in vacating the room were the most sensible course of action to deescalate the situation (T9.5-12).
Conclusion
In relation to subjective matters, I have taken into account the prosecution submissions and the submissions on behalf of the offender.
In relation to remorse, I have taken into account that the offender gave evidence before me at the trial on 7 September 2020 (T11.16 – T.19.22). Reference was there made to the record of interview which included the offender’s statement of remorse. The prosecution did not make submissions to the contrary in relation to remorse. I accept that the offender is remorseful in relation to the offence and has expressed remorse.
References
Two references were tendered in support of the offender.
An undated signed reference under the hand of Mr Ralph Arranz, the offender’s employer, includes the following:
I have known Zane Daniel all his life. I also employed Zane as [a] fourth year apprentice and he is now currently employed as a fully qualified electrician in the business… He has committed on improving and accepting more responsibility and wanting to better himself and his career.
Zane has told me what happened on the night of the incident that has led to the current charge of grievous bodily harm. He has never been violent towards another person and is always level headed… I was surprised to hear what has happened as I have never seen him or known him to be violent towards anyone. This [is an] isolated incident and is totally out of character for Zane.
After speaking with Zane regarding the incident, he is deeply embarrassed and ashamed of his actions. He realises his actions have caused not only embarrassment towards his family and himself, but most importantly it’s not the example he wants to set for his younger brother.
He also regrets the pain and anguish he has caused to the victim and his family in the incident also, for which he unreservedly wants to apologise for.
…
A reference under the hand of the offender’s godfather, Mr Gerard Tiffen, dated 28 April 2021 includes the following:
Having known Zane since his birth…, I have seen many facets of his personality and watched him grow into the young man he is today. Through all my interactions with Zane, he has always demonstrated a kind and respectful nature. I truly believe that Zane’s actions on the night in question were uncharacteristic, and isolated to this one incident.
Zane’s actions should not be the only factor taken into consideration, I hope you will also take into account he has never had any prior history with law enforcement or violence, Zane is still young and at the gateway to his future.
After speaking with Zane and based on my long-term relationship with him, I am convinced Zane possesses the desire and determination to learn from this incident and move in a positive direction with this life.
I take these references into account on sentence.
Offer of Guilty Plea/ Assistance in the Administration of Justice
Prosecution Submissions
The prosecution noted that on 23 January 2020, the offender had offered to plead guilty to causing grievous bodily harm in full satisfaction of the matter. The offer was made in writing through the offender’s legal representative whilst the matter was still in the Magistrates Court.
On 6 July 2020, the offender confirmed at a Criminal Case Conference that the only issue in the trial was the mental element of the offence of recklessly inflict grievous bodily harm, namely, recklessness, and that no prosecution witnesses were required for cross-examination.
On 4 September 2020 the offender confirmed that he would plead guilty to causing grievous bodily harm if it was on the indictment. This confirmation was in an email exchange with chambers.
During opening addresses at the trial on 30 September 2020, counsel for the offender conceded that if the offence of causing grievous bodily harm fell to be considered, all the elements of s 25 were made out. The prosecution acknowledged that the offender had conducted his defence in a manner consistent with this admission and the earlier offer to plead guilty to the alternative charge.
The prosecution made reference to Urlich v The Queen [2019] ACTCA 30 at [71]-[77] (Urlich v The Queen) where the Court of Appeal had previously dealt with an offer by an offender to plead to a lesser offence. In Urlich v The Queen, the relevant offer was to plead guilty to manslaughter in lieu of murder.
The prosecution submitted that the Court of Appeal in Urlich v The Queen had referred with some approval to the following passage from R v Hansen [2011] SASFC 10; 206 A Crim R 54 [33]-[38] (emphasis added):
The authorities reviewed above indicate, in my opinion, that proper sentencing principle does require account to be taken in a mitigatory way of an unaccepted offer to plead to a lesser offence which matches the verdict at the trial. The application of that principle is subject to the existence of other relevant factors, including the timing of the offer (and in particular its proximity to the trial), any terms or conditions attached to the offer, the circumstances in which the offer is made, and the conduct of the accused in the trial.
…
I add that any offer to plead to a lesser offence which an accused wishes to have taken into account if convicted of that offence should be communicated in clear terms and preferably in writing. A sentencing court should not have to resolve disputes about whether an offer was made or the terms of any offer. In particular a sentencing court should not have to determine disputes between counsel as to the content or effect of their oral discussions.
I emphasise also that these reasons are directed to offers to plead to a lesser offence. Something less than a formal offer, such as a “sounding out” or an “invitation to treat” should not attract the allowance referred to in the authorities.
The prosecution submitted that it was not clear how such a discount is to be applied with regard to the provisions of the Crimes (Sentencing) Act. The prosecution correctly noted that s 35 of the Crimes (Sentencing) Act sets out the procedure for the Court imposing a lesser penalty on an offender who has pleaded guilty than it would otherwise have imposed if the offender had not pleaded guilty to the offence. It was highlighted that s 35 only has application where an offender has in fact pleaded guilty to an offence: s 35(1)(a) Crimes (Sentencing) Act. It is to be noted that s 35(1)(a) of the Crimes (Sentencing) Act can be contrasted with s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (NSW Crimes (Sentencing Procedure) Act) which expressly allows sentencing discounts where a guilty plea offer is made for a different offence and the offender is later found guilty of that different offence.
The prosecution correctly submitted that the facts in the present matter may be appropriately addressed within the ambit of s 35A of the Crimes (Sentencing) Act.
s 35A of the Crimes (Sentencing) Act relevantly provides:
Reduction of sentence – assistance in administration of justice
(1) This section applies if
(a) an offender is convicted for found guilty of an offence; and
(b) before or after the conviction or finding of guilt, the defence assisted in the administration of justice for the offence.
Example – par (b)
An admission made by the defence pre-trial or during a trial
(2) A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided in the administration of justice.
(3) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) For this section, assistance in the administration of justice –
(a) includes a pre-trial disclosure by the defence; but
(b) does not include assistance –
(i) consisting only of a guilty plea under section 35; or
(ii) given to law enforcement authorities under section 36.
(5) In this section:
“defence” means –
(a) the offender; or
(b) any lawyer representing the offender.
The prosecution acknowledged that the unaccepted offer of the offender to plead guilty to causing grievous bodily harm combined with his conduct at trial had unquestionably assisted with the administration of justice. The prosecution submitted it would take no issue with a reduction being made on the same basis as if the offer to plead on 23 January 2020 had been accepted: R v Cardoso [2003] NSWCCA 15 at [20]-[22].
In oral submissions, counsel for the prosecution submitted that the offer to plead guilty to causing grievous bodily harm should attract a discount of between 20 and 25 per cent and it ought to be treated as if the plea had been accepted when the matter was in the Magistrates Court (T22.5-6).
Defence Submissions
The offender submitted that he was always prepared to enter a plea of guilty to a charge of causing grievous bodily harm and this had been conveyed via written representations to the ACT Director of Public Prosecutions on 23 January 2020 while the matter was still in the Magistrates Court. It is noted that the matter was committed for trial in the Supreme Court on 26 February 2020.
Notwithstanding the prosecution declining to accept the plea in satisfaction of the indictment, the offender was found not guilty of recklessly inflicting grievous bodily harm but guilty of causing grievous bodily harm.
The offender submitted that the offer to plead guilty was at an early stage in the proceeding when the matter was in the Magistrates Court. It was submitted that the offender should be afforded a discount of 25 per cent.
Counsel for the offender submitted that in addition to the offer to plead guilty to causing grievous bodily harm being made, the offender also conducted the trial on a sole discrete issue of recklessness. The offender had not conducted his defence by requiring the prosecution to put everything to proof nor by requiring the victim for cross-examination (T7.13-30).
The offender accepted that the approach pursuant to s 35A of the Crimes (Sentencing) Act proffered by the prosecution was appropriate to take the offer to plead into account and afford a discount accordingly.
In oral submissions, counsel for the offender submitted that while the offer to plead guilty could not be considered under s 35, it could be accepted as suggested by the prosecution pursuant to s 35A of the Crimes (Sentencing) Act. It was submitted that the discount is arrived at via a slightly different navigation of the Crimes (Sentencing) Act but in terms of practicality, the offer is treated in the same fashion as if he had entered a plea of guilty and it had been accepted in the Magistrates Court (T22.29-33).
Counsel for the offender submitted that the appropriate discount for the offer to plead guilty to causing grievous bodily harm would be in the range of 20 to 25 per cent (T22.24-25,41-42).
Conclusion on Discount
I have carefully considered the prosecution and defence submissions. On the evidence, in my view, a discount of approximately 20 per cent is appropriate. I will have something further to say about the relevant ACT and NSW legislation in an addendum to this judgment.
Time in Custody
The offender has spent no time in custody referable to this offence.
Comparable Cases
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 committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
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].
I was referred to the following cases involving causing grievous bodily harm by the prosecution:
Period of Fulltime Imprisonment and Partly Suspended
(a)In R v Latu [2019] ACTSC 109 (R v Latu), the offender had forcefully punched the unsuspecting victim in the face rendering him unconscious. The offence took place in the early hours of a Sunday morning in the Civic area of Canberra. The CCTV footage available in the matter showed the victim flying through the air after the strike. The offender may have perceived that he was being chased by the victim, when in fact the victim was running away from a co-offender. The victim suffered from complex skull fractures, bleeding within and around his brain, a laceration, bruises, and abrasions and was confined to bed for a month following the offence. The offender was an elite athlete and it was accepted that he was “generally a person of excellent character” when not under the influence of alcohol. Upon sentence, the court took into account an additional offence of common assault against another person other than the victim and a breach of a good behaviour order for headbutting someone in a nightclub. The offender was sentenced for 1 month imprisonment for the breach of the good behaviour order. For the offence of causing grievous bodily harm and the additional offence of common assault, Murrell CJ sentenced the offender to 20 months imprisonment (reduced from 24 months on account of the guilty plea), to be suspended after a period of 5 months in fulltime detention and upon entering a good behaviour order for a period of two years.
ICO
(b) In R v Lacey [2020] ACTSC 241 (R v Lacey), the offender forcefully punched the unsuspecting victim in the jaw and the victim lost consciousness and fell to the ground. The offence took place in the early hours of a Sunday morning near Mooseheads Nightclub & Pub in the Civic area of Canberra. The victim suffered a moderate to severe traumatic brain injury, a left epidural haematoma, a left temporal subarachnoid haemorrhage with a maximum depth of 9mm, a hairline base skull fracture and a right-sided temporo-occipital scalp haematoma. The victim remained in hospital for 25 days. The offender had other convictions for common assault. The offender was charged with an offence of causing grievous bodily harm which also breached an existing good behaviour order. Upon sentence, no further action was taken with respect of the breach of the good behaviour order. Elkaim J sentenced the offender to 27 months’ imprisonment (reduced from 36 months on account of the guilty plea) to be served by way of an ICO. As an additional condition of the ICO, the offender had to undertake 240 hours of community service work within 12 months.
(c) In R v Uluikadavu [2020] ACTSC 237 (R v Uluikadavu), the offender punched the victim in the head as part of an aggressive course of conduct, causing the victim to fall onto hard tiles near a rear exit of a bar and lose consciousness. The offence also took place in the early hours of a Sunday morning near Shorty’s bar in the Civic area of Canberra. Prior to the strike to the head, the victim had put his hand up in a “stop” gesture and said “hey, look, I don’t want to fight” to placate the situation. The victim suffered a fractured shoulder and jaw, as well as a traumatic dental injury that caused him to lose a tooth. The offender had no prior criminal record. Murrell CJ sentenced the offender to 13 months imprisonment (reduced from 16 months on account of the guilty plea) to be served by way of an ICO. The ICO included an additional condition that the offender had to undertake 100 hours of community service work within 12 months.
The prosecution correctly submitted that the current matter was objectively more serious than the preceding cases extracted above. In oral submissions, counsel for the prosecution submitted that the brain injury in R v Lacey was described as moderate to severe, whereas in this matter the brain injury was described as severe. Counsel for the prosecution acknowledged that the offender in R v Lacey had a relevant criminal history and that did not deprive that offender of receiving an ICO (T21.17-20, 24-25).
Counsel for the prosecution also referred to R v Latu in oral submissions and noted that while the offender’s character was assessed in positive terms, the Court had determined that the injury inflicted was so serious that it warranted a period of fulltime imprisonment (T21.25-29).
I was referred by counsel for the offender to the following cases involving causing grievous bodily harm. Explicit reference is made if the case involved the offence of recklessly inflicting grievous bodily harm as opposed to the offence of causing grievous bodily harm. I note that the maximum penalty for the offence of recklessly inflicting grievous bodily harm is 13 years imprisonment: s 20(1) Crimes Act 1900, as opposed to the maximum penalty for causing grievous bodily harm which is 5 years imprisonment: s 25 Crimes Act 1900.
Wholly Suspended Sentences
(a)In R v Alaragi, the offender bit off the top of his housemate’s ear in the share house after an argument had unfolded about borrowed money. The offender had suddenly run at the victim, wrapping his arms around him and proceeding to bite the top part of the victim’s left ear off. The piece of the ear was unable to be reattached and caused permanent scarring and disfigurement to the ear, as well as ongoing pain and discomfort. The offender was sentenced on one count of causing grievous bodily harm and a charge of common assault. Mossop J sentenced the offender to a period of imprisonment for a period of 8 months and 15 days which was wholly suspended upon the offender entering a good behaviour order for 30 months.
(b)In R v Price [2015] ACTSC 324, the victim attended the offender’s home in an agitated and intoxicated state. The victim initiated an argument with the offender and the victim punched the offender a number of times. The victim brandished a 14-inch hunting knife and made threats to the offender. The offender then proceeded to pick up a black aluminium baseball bat from his front door and struck the victim on the torso, arms and head. At some point, the victim fell to the ground and the offender continued to strike him as he was fearful for reprisal. The victim suffered a broken jaw and a large laceration to his forearm. The offender had a ‘significant’ criminal history. Robinson AJ sentenced the offender to 10 months imprisonment (reduced from 12 months on account of the guilty plea) wholly suspended upon the offender entering a good behaviour order for 3 years, which included a condition that the offender complete 200 hours of community service work.
(c)In R v Chapman [2018] ACTSC 57, the offender struck the victim without warning or provocation on the face with his right arm, causing the victim to stumble backwards and fall on the floor. The victim suffered a broken jaw and was discharged from hospital after 2 days. The offence took place in the later hours of a Saturday evening at Mr Wolf nightclub in the Civic area of Canberra. It is noted that the offender pleaded guilty to recklessly inflicting grievous bodily harm, as opposed to causing grievous bodily harm. The offender had previous convictions for violent offences. Mossop J sentenced the offender to 15 months imprisonment (reduced from 20 months on account of the guilty plea) which was wholly suspended upon the offender entering into a good behaviour order for a period of 30 months, which included a condition that the offender complete 300 hours of community service within 30 months.
(d)In R v Rheinberger (No 2) [2016] ACTSC 307, the offender was sentenced for recklessly inflicting grievous bodily harm after he was found guilty at trial by a judge alone: R v Rheinberger [2016] ACTSC 14. The victim had approached the offender in the smoking area of the Belconnen Soccer Club to complain of the offender’s harassment of the victim’s wife. As the victim turned intending to leave, the offender punched the victim, causing him to fall to the ground. The offender continued to punch the victim to the head several times with considerable force while the victim was on the ground. The victim suffered multiple facial fractures and soft tissue facial injuries. It is unclear whether the offender had a criminal history as there is no reference made in the sentence. Burns J sentenced the offender to 18 months imprisonment which was wholly suspended upon the offender entering into a good behaviour order for a period of 18 months.
(e)In R v Tonga [2015] ACTSC 365, the offender struck the victim twice in the head. The offence took place at a rugby match and the victim was a member of the opposing team. The victim suffered a fractured jaw and a broken and displaced nose. The surgery for the fractured jaw required the insertion of pins and bands to keep the victim’s mouth closed for 6 weeks. The surgery for the victim’s nose also required the victim to take a further month off work. The offender had no criminal history. Burns J sentenced the offender to 5 months imprisonment (reflecting a discount of approximately 20 per cent on account for the plea of guilty) wholly suspended upon the offender entering into a good behaviour order for 18 months. The good behaviour order included a condition that the offender complete 200 hours of community service within 12 months.
(f)In R v Byrne [2015] ACTSC 113, the offender struck the victim in the head with his right elbow or fist. The victim fell to the ground unconscious and as he fell, his head bounced off the ground and hit the ground again. The offence took place in the early hours of a Sunday morning in the Civic area of Canberra outside of a convenience store. The victim was intubated, paralysed and ventilated upon arrival at the Canberra Hospital and was suffering from life threatening head injuries. The victim was on life support at one point and in intensive care for a number of days. The injuries to the victim were permanent and the victim continued to suffer from a major long-term impairment to his cognitive function. The offender had a significant criminal history. The offender received a discount for entering a plea of guilty, but the percentage was not specified. Refshauge J sentenced the offender to 12 months imprisonment commencing on 8 September 2014 to be suspended on 8 May 2015 for 12 months. The offender also received a good behaviour order for 2 years. Nevertheless, this case was included by counsel for the offender under the heading of wholly suspended cases.
(g)In R v Smith [2020] ACTSC 277, the offender had pleaded guilty to one count of intentionally and unlawfully choking or strangling and one count of causing grievous bodily harm. A verbal argument had broken out between the offender and the victim. The offender and the victim were in a relationship. The offender grabbed the victim’s face with both hands and squeezed before squeezing the victim’s throat (the choking offence). As the offender was leaving the home, he struck the victim on the side of her face causing the victim to momentarily ‘black out’ (the causing grievous bodily harm offence). The victim was admitted to hospital for about 4 days. Examination revealed a comminuted fracture of the orbit of her left eye and the victim reported she was suffering from double vision, a tender jaw and a tender neck. At the time of the offence, the offender was the subject of an ICO that had been imposed in the Magistrates Court for a driving offence. For the choking offence, Elkaim J sentenced the offender to 19 months imprisonment (reduced from 24 months on account of the guilty plea). For the causing grievous bodily harm offence, the offender was sentenced to 29 months imprisonment (reduced from 36 months on account of the guilty plea). The total period of imprisonment was 31 months and it was suspended with immediate effect on condition that the offender enter a good behaviour order for 2 years. The good behaviour order included a condition that the offender perform 175 hours of community service work.
Period of Fulltime Imprisonment and Partly Suspended
(h)The offender also referenced R v Latu.
(i)In R v Bui [2019] ACTSC 366, the offender stabbed the victim in the abdomen with a knife and caused a deep laceration to the victim’s arm. Prior to the offence, the victim and the offender had been in a verbal disagreement and the victim had taken hold of the offender’s arm. The victim released the arm of the offender and began walking away. The offender obtained the knife and ran after the victim, stabbing him twice. The offence occurred in a public place. The victim had to undergo emergency surgery and spent 3 days in hospital. The offender was 44 at the time of sentence and had a limited criminal history that did not include any violent offending. Burns J sentenced the offender to 15 months imprisonment (reflecting a discount of approximately 15 percent), to be suspended after 6 months upon the offender entering into a good behaviour order for 2 years.
(j)In R v Harmouche [2015] ACTSC 381, the offender was found at a trial by judge alone to have punched the victim once to the head, causing the victim to fall to the ground and hit his head on the edge of the stage: R v Harmouche [2015] ACTSC 217. The offence took place in the early hours of a Sunday morning at Meche nightclub in the Civic area of Canberra. The victim suffered a severe traumatic brain injury as a result. The offender had no criminal history. The trial was to determine whether the offender was guilty of the principal offence of recklessly inflicting grievous bodily harm or the alternative offence of causing grievous bodily harm. The offender pleaded guilty at arraignment to the alternative offence. The offender had no criminal history. Burns J sentenced the offender to 15 months imprisonment (reduced from 20 months on account of the guilty plea), the first 6 months were to be served by way of periodic detention and the balance of the sentence was suspended upon the offender entering into a good behaviour order for 2 years.
ICO
(k)The offender also referenced R v Lacey and R v Uluikadavu.
Good Behaviour Order
(l)In R v Keyes [2016] ACTSC 387, the victim had initially grabbed the offender by the neck and pushed him backwards, taking him to the ground at a Melbourne Cup Day celebration at the Duxton in O’Connor. The victim had threatened to hit the offender when the offender was on the ground by holding his right arm above him cocked as if he was going to hit him. Both the victim and the offender were ejected from the Duxton. Outside of the venue, the offender confronted the victim and another altercation ensued. The offender pushed and hit the victim making contact with the victim’s jaw. The victim fell to the ground and hit his head of the pavement. Somehow, the victim suffered a significant injury to his ankle in the course of the fall, but the mechanism was not clearly articulated in evidence. The injuries to the victim’s head were deemed not to amount to grievous bodily harm but the injuries to the right ankle were serious. The offender had a short criminal record. Refshauge J convicted the offender and imposed a good behaviour order for 2 years, including a condition that the offender perform 80 hours of community service work within 12 months.
Fulltime Imprisonment
(m)In R v Todkill [2018] ACTSC 182, the offender punched the victim three times in the face/ jaw which rendered the victim unconscious. The offence was unprovoked in any physical sense. The offence was committed at a public place and the offender was in company at the time. The offender was also on conditional liberty at the time it occurred. No further information about the injuries to the victim was provided in the sentence. Burns J sentenced the offender to 13 months imprisonment (reduced from 16 months to reflect the plea of guilty) with a non-parole period of 6 months.
I note at this juncture that in view of the seriousness of the offence before me that a wholly suspended sentence or a standalone good behaviour order is not an appropriate sentencing disposition. Such a sentencing disposition would be wholly inappropriate and excessively lenient.
I have had regard to the comparable cases in accordance with the relevant authorities.
Statutory and Other Relevant Considerations
In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
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.
The sentencing process also requires an examination of s 10 of the Crimes (Sentencing) Act and alternatives to prison. In this case, there was no dispute that the threshold in s 10 had been crossed (T15.1-3).
R v Sharma [2016] ACTSC 180 involved an offender being sentenced for a ‘one punch’ attack. The offender had pleaded guilty to a single charge of recklessly inflicting grievous bodily harm. Elkaim J stated at [33]:
There is of course, in addition to the interests of the offender, the very significant considerations which must reflect society’s abhorrence for attacks of this kind. These attacks are often called “coward punches”. This is an emotive term but one which is a natural product of events as seen on the CCTV footage.
I underline the importance of recognising that our society abhors attacks of this nature; the extremely serious nature of the punch is evidenced in the CCTV footage. Our society abhors this behaviour whether the relevant offence is one of recklessly inflicting grievous bodily harm or the offence of causing grievous bodily harm.
R v Deng [2017] ACTSC 338 involved an offender being sentenced for a ‘one punch’ attack. The offender had pleaded guilty to a single charge of recklessly inflicting grievous bodily harm. Mossop J stated at [22]:
…There is clearly a significant need for general deterrence of violent conduct by young men that occurs in or near licensed drinking establishments.
I underline that general deterrence is undoubtedly important in this case.
It was correctly submitted that the following purposes of sentencing are engaged in the present matter: general deterrence, denunciation, recognising the harm to the victim, and punishment. The prosecution accepted that the offender is at a low risk of general re-offending, in light of the ICO Assessment Reports.
In oral submissions, counsel for the prosecution correctly acknowledged that the offender comes before the Court, as a man who has never been before the Court before and will probably never come before the Court again. The Court must balance the subjective circumstances of the offender against the extreme injuries sustained by the victim (T18.13-16).
The prosecution acknowledged that the Court was placed in a difficult situation as the purposes of sentencing point in different directions in relation to the disposition of the matter: Veen v The Queen(No 2) (1988) 164 CLR 465 at 476 (Veen v The Queen (No 2)). The prosecution submitted that a period of fulltime imprisonment was appropriate. This is undoubtedly correct. The question is how the imprisonment is to be served.
I note at this juncture as I did in R v Miller [2018] ACTSC 244 at [57] and R v Bandy [2018] ACTSC 261 at [108] that in Veen v The Queen (No 2) 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.
I also underline the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
In R v Hill [2016] ACTSC 310 at [48], Murrell CJ also observed the following about rehabilitation:
Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses the likely future harm to the community and protection of the community.
I underline that where two highly relevant considerations are incompatible, it is not necessarily the case that the ultimate disposition must constitute some kind of averaging out between the two considerations. There are circumstances in which one consideration is entitled to be determinative: R v Hopkins [2004] NSWCCA 105 at [22].
In light of the correct concession by counsel for the offender that the s 10 threshold had been crossed, the offender submitted that the appropriate disposition in the matter would be a sentence of imprisonment to be served by way of an ICO.
In oral submissions, counsel for the offender stated that the offender has good prospects of rehabilitation given his admissions and acceptance of wrongdoing, and that he has lived ‘an otherwise blameless life’. It was submitted that the Court could conclude that the offender had good prospects of rehabilitation and is unlikely to come before the courts again (T8.28-35). It was further noted that the offender would need to relocate to his mother’s address in Canberra to be supervised pursuant to the ICO (T15.36-44).
Counsel for the offender submitted that a significant period of community service, in the order of hundreds of hours, would be an appropriate additional condition of an ICO to reflect the degree of injury sustained by the victim (T16.29-34). It was submitted that a community service condition, together with the remaining conditions of an ICO would serve general deterrence, denunciation, and punishment (T17.1-4).
As I have indicated above, imprisonment is inevitable in this case. The question is how it is to be served.
Sentence
As I have emphasised at the outset, it must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. Both the short and long-term consequences of being a victim of this offence must be acknowledged. The offender’s conduct has resulted in tragic consequences.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender.
The appropriate sentence for the offence of causing grievous bodily harm is 4 years and 5 months of imprisonment, reduced to 3 years and 6 months on account of offender’s assistance in the administration of justice in offering to plead guilty to the offence the offender was ultimately found guilty of.
I have determined that the sentence of imprisonment will be served by way of an ICO. The offender will be subject to an additional condition to undertake 500 hours of community service work. I note that this is the maximum amount of hours for community service work that a court can order be performed for a community service condition in an ICO: s 80E(1) Crimes (Sentencing) Act.
I also note that I must allow the offender to complete the community service work within at least 24 months: s 80E(2)(c) Crimes (Sentencing) Act. The offender will be required to undertake the 500 hours of community service work within 30 months. Pursuant to the recommendation of the ICO Assessment Report dated 27 November 2020, the offender will also be subject to a further additional condition to engage in programs as required by ACT Corrective Services to address his criminogenic needs.
Addendum
Offers to Plead Guilty
As I have discussed above, the offender offered to plead guilty at an earlier stage to the offence for which he was ultimately convicted. This was taken into account and characterised as ‘assistance in the administration of justice for the offence’. The offender received a discount of approximately 20 per cent: s 35A of the Crimes (Sentencing) Act. This was because s 35 of the Crimes (Sentencing) Act, which deals with the procedure for allowing a discount for a guilty plea, applies to pleas of guilty and not offers to plead guilty.
This s 35A pathway through the Crimes (Sentencing) Act to acknowledge the discount is available, as submitted by the prosecution. Nevertheless, the Crimes (Sentencing) Act could be amended to outline the law with greater precision.
Counsel for the prosecution referred to s 25E of the NSW Crimes (Sentencing Procedure) Act which expressly contemplates offers to plead guilty where refused by the prosecution.
s 25E of the NSW Crimes (Sentencing Procedure) Act came into force as a result of the Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 (the Committals and Guilty Pleas Bill). At the second reading speech of the Committals and Guilty Pleas Bill on 11 October 2017, the NSW Attorney-General made the following observations about the insertion of s 25E:
This is important because there are multiple offences that have similar elements and penalties. An accused person should not be required to offer to plead guilty to exactly the right charge, or to every possible variation of an offence, in order to obtain the discount.
I recommend that this judgment be provided to the Attorney-General for the ACT to enable consideration of whether the Crimes (Sentencing) Act requires amendment: see for example LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016 at [67]. As the High Court outlined in Taikato v The Queen (1996) 186 CLR 454 at 466, ‘the operation of the criminal law should be as certain as possible’.
Any amendment would not be in identical terms to the NSW Crimes (Sentencing Procedure) Act as the ACT legislation would require consistency with the other provisions in the Crimes (Sentencing) Act.
Blackwell
I further note that it was discussed in R v Daniel at [94]-[95] that legislation has been amended in NSW subsequent to the decision of Blackwell v The Queen [2011] NSWCCA 93; 81 NSWLR 119 concerning recklessness.
Orders
I make the following orders:
(a)I record a conviction.
(b)The offender is sentenced to imprisonment for a period of 3 years and 6 months.
(c)The sentence of imprisonment is to be served by way of an Intensive Correction Order.
(d)In addition to the core conditions of the Intensive Correction Order, the offender is subject to the following additional conditions:
(i)The offender is to undertake 500 hours of community service work within 30 months from today.
(ii)The offender must engage in programs as required by ACT Corrective Services to address his criminogenic needs.
| I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 17 June 2021 |
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