R v EL

Case [2016] ACTSC 241

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v EL

Citation:

[2016] ACTSC 241

Hearing Date:

29 April 2016, 16 May 2016 and 20 July 2016

DecisionDate:

20 July 2016

Before:

Penfold J

Decision:

See [45]-[47] below.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – one count of recklessly inflicting grievous bodily harm – late plea of guilty – history of violent offending – offender exposed to significant trauma during childhood – offender suffering symptoms of Post Traumatic Stress Disorder at time of offence – connection between moral culpability of offender and objective seriousness of offence – sentence of imprisonment to be served by intensive correction order.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 11(3)

Crimes Act 1900 (ACT), s 20(1)

Cases Cited:

McCullough v The Queen (2009) 194 A Crim R 439

R v Amosa [2015] ACTSC 34

R v Freeman-Quay (No 3) [2015] ACTSC 284

R v Mitchell; R v Gallagher (2007) 177 A Crim R 94

R v Seretin [2016] ACTSC 45
R v Williams [2015] ACTSC 406

The Queen v Ivan Torbert [2015] ACTSC 331

Parties:

The Queen (Crown)

EL (Accused)

Representation:

Counsel

Mr D Sahu Khan (Crown)

Mr J Sabharwal (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Prail Lawyers (Accused)

File Number:

SCC 199 of 2014

The offence

  1. EL has pleaded guilty to one count of recklessly inflicting grievous bodily harm, an offence arising under s 20(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 13 years.

The incident

  1. The offence was committed in August 2013.  As summarised in the agreed statement of facts:

The offender and the complainant are brothers.  There was disagreement between them and the offender picked up a wooden fence paling and hit the complainant with it.  The complainant suffered serious injuries.

  1. The assault followed a conversation between the two brothers (EL being the younger) which, possibly fuelled by consumption of six cans of beer and a Red Bull, turned into an argument about family matters, in particular the pregnancy of EL’s wife and the need for him to get a job so he could support her.  Around 20 minutes after the conversation ended and EL went back to their mother's house, his brother returned to collect a jacket he had left. EL saw him, jumped out of the window, and hit his brother with a wooden fence paling.  EL hit his brother again, and when his brother bent down to pick up a rock to defend himself, EL hit him in the mouth, and he fell to the ground.  EL's brother was rescued by another brother.

  1. Some time later (it is not clear how much later), EL called 000 and said that he had had a fight with his brother, claiming that his brother had hit him first.  Police came and the brother was taken to hospital. 

  1. In hospital, EL's brother underwent emergency brain surgery, and remained in the Intensive Care Unit…

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R v EL [2016] ACTSC 241
Case
[2016] ACTSC 241
Decision Date

CaseChat Overview and Summary

In the case of R v EL, the appellant faced charges for recklessly inflicting grievous bodily harm. The matter was heard in the relevant court, where the appellant entered a plea of guilty to one count, later than the usual time frame. The court was tasked with determining an appropriate sentence, considering the appellant’s extensive history of violent offending, exposure to significant trauma during childhood, and symptoms of Post Traumatic Stress Disorder at the time of the offence. The court needed to balance the moral culpability of the offender against the objective seriousness of the offence.

The primary legal issue was whether the mitigating factors, such as the appellant's traumatic background and mental health condition, warranted a sentence that diverged from standard penalties for similar offences. The court examined the principles of sentencing, focusing on the need for punishment and deterrence, alongside the importance of rehabilitation and consideration of the offender’s personal circumstances. The court also considered the need for the sentence to reflect the connection between the moral culpability of the offender and the objective seriousness of the offence.

After careful deliberation, the court determined that the appellant’s history of violent behaviour and the circumstances surrounding the offence warranted a sentence of imprisonment. However, recognising the appellant's exposure to significant trauma and mental health issues, the court decided that the sentence should be served by an intensive correction order. This approach aimed to address the underlying issues contributing to the offender’s behaviour while ensuring public safety. The court's decision was aimed at balancing the need for punishment, deterrence, and rehabilitation.

The final orders required the appellant to serve a sentence of imprisonment under an intensive correction order, reflecting the court's comprehensive consideration of the mitigating factors and the objective seriousness of the offence. The specific details and duration of the sentence were outlined in the judgment, ensuring clarity and adherence to legal principles.

Orders

Orders of the court

See [45]-[47] below.

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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