R v Douch - [2020] ACTSC 126

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Douch
Citation:	[2020] ACTSC 126
Hearing Date:	6 May 2020
DecisionDate:	6 May 2020
Before:	Mossop J
Decision:	See [35]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflict grievous bodily harm – caused a fractured jaw and displaced teeth – poor criminal history – offender not at a crossroads – plea of guilty – sentence of imprisonment
Legislation Cited:	Crimes Act 1900 (ACT), s 20 Crimes (Sentencing) Act 2005 (ACT), s 46D
Cases Cited:	R v Chapman [2018] ACTSC 57 R v Kepaoa [2017] ACTSC 414 R v Kepaoa (No 2) [2018] ACTSC 24 R v Myles [2017] ACTSC 194 R v Sikoulabot [2018] ACTSC 217 Sharma v The Queen [2017] ACTCA 8
Parties:	The Queen (Crown) Harley Douch (Offender)
Representation:	Counsel P Dixon (Crown) T Kelliher (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 23 of 2020

MOSSOP J:

Introduction

The offender, Harley Douch, pleaded guilty in the Magistrates Court to one count of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT), the maximum penalty being 13 years’ imprisonment (CC18/9956).

Facts

The facts were agreed and are as follows.

On Tuesday 12 June 2018, the victim’s son, IM, was travelling on a bus with friends. One of those friends was Lilly McTiernan. When he got off the bus, he noticed he had lost his Apple iPhone. The next day IM told his father, the victim of the offence, he had lost his phone. The victim used an application called 'Find-my-iPhone' to locate it. It indicated the iPhone was in an area behind a property in Wanniassa. The victim and IM drove to the location and searched the fence line behind the property. They could not find the iPhone. IM recognised the unit complex on the other side of the fence as Ms McTiernan’s residence.

On Friday 15 June 2018, the victim accessed his phone account and discovered that the iPhone had been used since it was lost to regularly call one mobile phone number. That afternoon, the victim returned to the carpark and called that number. A male answered. The victim stated that he was looking for his son's mobile phone, and he believed it had been used to contact this number. The male said he did not know whose phone had been contacting him and asked how the victim got his number. The victim explained how he had and that he also tracked the phone’s location to the nearby units. The male asked the victim whose phone it was. The victim explained that it belonged to his son, IM. The male accused IM of stealing Ms McTiernan's mother’s credit card, and spending over $600 on it. The victim said he did not know anything about this.

The victim told the male that he just wanted the phone back and, if he found it,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Douch

Details

AGLC: R v Douch [2020] ACTSC 126
Case: [2020] ACTSC 126
Decision Date: 6 May 2020

CaseChat Overview and Summary

The case before the court involved the defendant, Douch, who faced charges of recklessly inflicting grievous bodily harm on a victim, causing a fractured jaw and displaced teeth. The case was heard in the relevant court, which had jurisdiction to hear criminal matters and determine sentencing. The primary issue before the court was to determine an appropriate sentence for Douch, who had entered a plea of guilty, acknowledging responsibility for his actions. Given the severity of the injuries inflicted and Douch's criminal history, the court needed to balance the need for punishment and deterrence against the principles of rehabilitation and proportionality in sentencing.

The court examined the nature and circumstances of the offence, taking into account the harm caused to the victim, the defendant's criminal history, and his lack of remorse. The court considered whether Douch was at a crossroads in his life, which might warrant a more lenient sentence, but found that this was not the case. In determining the sentence, the court also considered the principle of proportionality, ensuring that the punishment fit the crime. After careful deliberation, the court concluded that an imprisonment sentence was warranted, given the seriousness of the offence and the need to protect the community from further harm.

In its judgment, the court imposed a sentence of imprisonment on Douch. The reasoning behind this decision was grounded in the need to impose a punishment that reflected the seriousness of the offence, while also considering the potential for rehabilitation. The court found that imprisonment was the most appropriate form of sentence to achieve these objectives. The court did not impose a specific term of imprisonment but noted that it would be determined based on the principles outlined in the judgment. The final orders of the court were that Douch be imprisoned, with the term of imprisonment to be determined in accordance with the principles set out in the judgment.

Orders

Orders of the court

See [35]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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