R v Douch
[2020] ACTSC 126
•6 May 2020
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 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, he could throw it over the back fence. The male agreed and said that he would speak to Ms McTiernan and search the house. The victim said he would wait and call him back in five minutes. At approximately 4.50pm, the offender exited the unit complex and stopped on the footpath almost directly in front of the victim's car. At this time the victim’s wife called on the telephone. The victim asked his wife to stay on the line and got out of the car to speak with the male.
The offender pulled the mobile telephone from his pocket and said, "I've got the phone". The offender then said words to the effect "Give me fifty dollars for it, for the cigarettes and food that they've spent on the card and I'll give you the phone back".
The victim told the offender he was not going to give him $50 and that he did not know anything about money being spent on a card. Another male then came out and stood next to the first male. He repeated what the offender had said. The victim repeated he was not going to give them any money and walked back to his car. As the victim opened his car door, he saw a further three people approaching, one male and two females. As he was getting back into the car one of the females approached his car and began yelling. The victim's wife was still on the phone and heard the commotion. The victim's sons were also listening to the telephone call. IM recognised one of the voices as belonging to Ms McTiernan.
The victim was standing with one leg inside the car and his left arm leaning on the door. He then felt a blow to the left side of his face. It caused his head to go sideways and he felt immediate pain down the left side of his face. The victim turned to his left and saw the offender standing right next to the car door. He then saw the offender walk back towards the unit complex. The victim rang police and went to seek medical attention. He suffered a broken jaw on the left hand side, and one of his teeth was displaced. The victim required surgery under general anaesthetic to repair his broken jaw. A plate was inserted into the bottom left jaw. Four screws were required to hold the plate in place.
Later, one of the victim’s other sons and two friends travelled to the location. They knocked on the door of the unit where they understood, from a previous Facebook search, the offender lived. The victim’s son explained they were there because someone had stolen IM's mobile phone. The offender said he had IM's mobile phone. He said someone had stolen it because IM had stolen from Ms McTiernan's mum. The son asked who had punched the victim. The offender said he had assaulted the victim because he would not give him money and he was being cheeky. The son agreed to pay $50 for the return of the phone.
Police attended the offender’s residence on 20 July 2018. Ms McTiernan said that she witnessed the offender hit the victim. In September 2018 another individual contacted police and informed them that she had witnessed the offender punch the victim.
On 20 September 2018 the offender was interviewed by police. When asked what he knew about the assault, he replied “Nothing. It wasn’t me”.
The victim suffered a fractured jaw. He had to undergo an open reduction and fixation of the jaw. Recovery from that involved limited food intake for six weeks. His teeth have been displaced by the fracture and that has affected his eating. He has had his teeth ground down to reduce the effects of his teeth being out of alignment.
Victim Impact Statement
In his victim impact statement the victim described the stress the offending has caused him and his family. His wife has become stressed and worried about possible repercussions of providing statements about the offending and the family has installed security cameras for peace of mind. The victim describes that the injury was treated by inserting a metal plate into the bottom of his jaw. Screws, joined together by elastic to prevent movement, were inserted in the top and bottom of his jaw. The bands and screws were extremely uncomfortable. The misalignment of his teeth has made chewing food very difficult and rendered the victim unable to pronounce certain words without slurring his speech. The permanent damage to the victim’s teeth is a “constant reminder” of the incident. The bruising to his chest, which is shown in the photographs to have existed post-surgery, took around four weeks to fade. The pain, surgery and time spent recovering has clearly caused the victim and his family emotional hardship.
Objective seriousness
So far as the extent of injuries is concerned, a broken jaw and its consequences fall at the low end of what might constitute grievous bodily harm. The circumstances of the offending involved an unprovoked punch to the head of an entirely innocent citizen who was lawfully and properly trying to recover his property. At the time of the offending the offender was in the company of others. Notwithstanding these aggravating circumstances, I consider the offending is below the mid range of objective seriousness for this offence.
Subjective circumstances
The offender is 26 years old. He is the only child of his parents’ relationship, but has nine half-siblings from relationships his parents had after they separated. He was raised by his mother and step-father. Until the age of 12 he believed his step-father was his biological father. A few years ago he reconnected with his biological father and they enjoy a supportive relationship.
He had a traumatic childhood being exposed to alcohol abuse and subject to family violence. The offender completed Year 9 at school. He did not complete Year 10.
The offender has been employed in construction and motor repair. He has been unemployed since December 2019. He left his job as a mechanical trades assistant so as to be eligible for legal aid in relation to these proceedings. He has recently been offered full-time employment as a landscaper.
The offender reported his parents were alcoholics and alcohol was readily accessible at home. The offender has engaged in regular use of alcohol since the age of 18 and engaged in binge-drinking every weekend between ages 18 and 23. He reported that over the past 12 months he has consumed five to six drinks a month, or less. Notwithstanding this, the Alcohol Use Disorder Identification Test, administered as part of preparation of the pre-sentence report, indicated that in April 2020 his alcohol use was at a risky level.
He commenced smoking cannabis at the age of 13, using it daily until the age of 20. In the past year he has smoked 1.2 grams daily. He began smoking methamphetamines at the age of 21. He smokes $50 worth of the substance weekly. Notwithstanding this report, in the pre-sentence report, the offender submitted that, other than at Christmas, he has been abstinent from illicit substance use. It is not possible to make a positive finding about the extent of his illicit substance use other than to say he has a history of it, but it is presently not at a level which would present an obstacle under s 46D of the Crimes (Sentencing) Act2005 (ACT) to an intensive correction order.
The offender did not report any physical or mental health issues. He recognised that a mental health assessment would be beneficial, but did not want to undertake one due to the associated costs.
The author of the report states: “Mr Douch appeared to take no responsibility for his offending behaviour”. He denied assaulting the victim. He stated that he pleaded guilty as part of a plea-bargaining process.
He was assessed as a medium-high risk of general reoffending. The author of the pre‑sentence report expressed concern over his history of non‑compliance with community-based orders and his ongoing drug and alcohol use.
Criminal history
Mr Douch has a poor criminal history. He has been the beneficiary of suspended sentences of imprisonment but has a poor history of compliance with the good behaviour orders with which they are associated and hence has had periods of imprisonment imposed previously. He does not have a significant history in relation to offences of violence, although he does have a conviction for joint commission common assault for which he was given a suspended sentence of four months’ imprisonment in 2014. He also has convictions for aggravated burglary, theft, unlawful possession of stolen property and driving while disqualified or suspended. Between 2012 and 2018 he has 44 convictions. He has had to be dealt with for breaches of good behaviour orders on 16 occasions. The criminal history is an uninspiring one and, whilst not the most serious, significantly limits any leniency in relation to the present offending.
Plea of guilty
The offender initially pleaded not guilty on 8 August 2018, but subsequently pleaded guilty on 20 December 2018. The delay in dealing with the offence has arisen because the offender failed to appear in the Magistrates Court in February 2019 after his plea of guilty and only handed himself in in October 2019. The utilitarian value of the plea warrants a reduction of 25% in the sentence that would otherwise be imposed.
Time in custody
The offender has not spent any time in custody in relation to this offence.
Consideration
Notwithstanding the denial to the author of the pre-sentence report of his commission of the offence, having regard to the agreed statement of facts there is no difficulty with the acceptance of his plea.
The parties referred to a range of cases involving reckless infliction of grievous bodily harm. Counsel for the offender provided a useful table summarising cases in this court involving recklessly inflicting grievous bodily harm. Counsel for the Crown referred to some additional cases. Whilst I have considered each of the cases, I refer here to a number of cases involving punches causing broken jaws. Each involved pleas of guilty. Sharma v The Queen [2017] ACTCA 8 involved a plea of guilty to a single punch rendering the victim unconscious with a fractured jaw bone. The offender was of excellent character and a sentence of 27 months suspended after nine was upheld on appeal. R v Myles [2017] ACTSC 194 (‘Myles’) was a plea of guilty, and involved a single punch with no provocation and two jaw fractures. The offender had no significant criminal history and was of excellent character and remorseful. The sentence of 22 months was to be served by way of intensive correction order. R v Chapman (‘Chapman’) [2018] ACTSC 57 was a plea of guilty and involved a drunken punch leading to a fractured jaw. The offender had previous convictions for affray and assault but strong subjective circumstances. The sentence was 15 months suspended with 300 hours of community service. R v Sikoulabot [2018] ACTSC 217 involved an offender involved in a fight in which the victim got a broken jaw, chipped teeth and was knocked unconscious. The offender was 19 years old and had only a single drink driving offence on his record. R v Kepaoa [2017] ACTSC 414 and R v Kepaoa (No 2) [2018] ACTSC 24 involved a drunken attack outside a nightclub. The offender inflicted a broken jaw. The offender was 28 years old and had a negligible criminal history. He was otherwise of good character. He was employed, had a partner and had a low risk of reoffending. The sentence of 22 months’ imprisonment was to be served by way of an intensive correction order with 249 hours of community service.
Myles and Chapman each involved subjective circumstances which warranted a degree of leniency and indicated better prospects of rehabilitation than in the present case. Sikoulabot had the benefit of youth and a negligible criminal history. Kepaoa had a negligible criminal history and was otherwise of good character.
The offending involved a pointless and unnecessary act of violence directed to an innocent person. All of the difficulties with the interaction arose from the offender’s behaviour. The antecedents and attitude of the offender indicate that specific deterrence, denunciation of the conduct and protection of the community are important sentencing considerations.
I do not accept the submission made on behalf of the offender that he has turned a corner or reached a crossroads at which he is choosing a life of lawful conduct. While I would like to think that that was the case, the evidence is simply not there to support it.
I do not consider that any sentence other than a custodial one is appropriate. Contrary to the submissions made on behalf of the offender, I do not consider that assessment for the purposes of an intensive correction order is appropriate, having regard to the nature of the offending and the offender’s prospects of rehabilitation. While there is, or has in the recent past, been some ongoing illicit drug use and use of alcohol, the evidence does not make it apparent that these are the drivers of his criminal behaviour in a way which would make an intensive correction order obviously useful. Similarly, the evidence before me does not disclose other matters of significance that would be appropriately addressed by way of intensive correction.
I do not consider that a suspended sentence of imprisonment would be appropriate, as it would not properly reflect the gravity of the offending and the offender is no longer entitled to that kind of leniency.
In determining the appropriate sentence I have also had regard to the current COVID‑19 pandemic and the fact that conditions within the prison may be more restrictive than they might otherwise be as a result of the existence of that pandemic.
The appropriate starting point is a sentence of imprisonment of 20 months reduced to 15 months on account of the plea of guilty. The non-parole period will be eight months. This is at the shorter end of the usual range and reflects the offender’s youth and the fact that this is his first substantial period in custody. It gives him the benefit of a longer period subject to supervision in the community.
Orders
The orders of the Court are:
1 On the count of recklessly inflicting grievous bodily harm (CC18/9956), the offender is sentenced to imprisonment for 15 months commencing on 6 May 2020 and ending on 5 August 2021.
2. The non-parole period commences on 6 May 2020 and ends on 5 January 2021.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 21 May 2020 |
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