R v Forsyth
[2015] ACTSC 326
•21 October 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forsyth |
Citation: | [2015] ACTSC 326 |
Hearing Date: | 21 October 2015 |
DecisionDate: | 21 October 2015 |
Before: | Penfold J |
Decision: | 1. The offender is sentenced to imprisonment for four months. 2. The sentence is immediately suspended and a good behaviour order for 12 months is made. |
Category: | Sentence |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for assault occasioning actual bodily harm – road rage incident – offender a trained boxer – delays in finalising matter – not all attributable to offender – application for permanent stay previously refused – sentence reduction allowed in recognition of delays. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes Act 1900 (ACT), s 24 Liquor Control Act 1988 (WA) |
Cases Cited: | R v Benjamin Taylor SCC53/2005, Connelly J, 22 July 2005 R v Christopher Barbaro SCC471/2008, Penfold J, 17 June 2015 R v Klobucar SCC186/2010, Penfold J, 19 September 2013 |
Parties: | The Queen (Crown) Adam Tony Forsyth (Offender) |
Representation: | Counsel Mr D SahuKhan (Crown) M K Saeedi (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 437 of 2008 |
In August 2013, after a judge-alone trial, I found Adam Forsyth guilty of one count of assault occasioning actual bodily harm under s 24 of the Crimes Act 1900 (ACT). That offence carries a maximum penalty of imprisonment for five years.
The offence was committed in November 2007. The matter has been beset by delays ever since, and I shall have more to say about them shortly.
In my judgment (R v Forsyth [2013] ACTSC 174) I summarised the incident as follows.
The accused had driven to the Canberra suburb of Fyshwick, and was attempting to park his car in Wollongong Street, close to the intersection with Gladstone Street. The complainant, who was driving a truck, turned off Gladstone Street into Wollongong Street and found his way blocked by the accused's car. The complainant blew his horn at the accused, who did not move his car out of the complainant's way. The complainant got out of his truck and walked towards the accused's car. The accused got out of his car and walked towards the truck. The two men met, and punches were thrown. In the encounter, the complainant sustained, among other things, substantial bruising and a chipped tooth. When the encounter finished, several members of the public who had witnessed parts of the incident came to the complainant's aid, and gave him their contact details.
In the end I found that the prosecution had excluded self-defence as the explanation of the incident, and accordingly found Mr Forsyth guilty. It is unnecessary to set out all the detailed findings I made on disputed matters, but several of them will be mentioned in the course of these remarks.
The objective seriousness of the offence
I regard this as towards a mid-range example of the offence concerned, having regard to the circumstances that apparently provoked it, being Mr Forsyth's decision to confront the complainant, Mr Patafta, rather than getting out of his way and allowing traffic to continue moving along the street; Mr Forsyth's unusually good capacity to defend himself in such a confrontation; and the injuries sustained by Mr Patafta. The doctor who examined him the day after the incident reported swelling and tenderness on his right forearm and in front of his right ear, tenderness in parts of his chest, and several red marks and bruises to his face. Mr Patafta had also reported the chipped tooth, but could not open his mouth sufficiently for the doctor to confirm this.
In my judgment, I found that Mr Forsyth had inflicted at least eight blows on Mr Patafta, and also concluded that:
... far from involving a threat from which Mr Forsyth needed to defend himself, this was in fact what is often called a road-rage incident, in which Mr Forsyth responded not to a perceived threat to his physical safety but to verbal criticism of his driving skills, and possibly a degree of public humiliation as he sought unsuccessfully to park his car, by using his boxing skills to punish Mr Patafta.
Criminal history
Mr Forsyth, who is now 34, has a criminal history that, before this offence, consisted only of several minor traffic infringements. Since this offence he has been convicted of two other assaults occasioning actual bodily harm, one in New South Wales in January 2010 and the other in Western Australia in February 2010. He has also been dealt with in Western Australia for relatively minor offences against the Liquor Control Act 1988 (although offences that I understand arose indirectly from an incident of violent behaviour on licensed premises) and, most recently, has served 12 months of a two-year term of imprisonment in Western Australia for Commonwealth offences of giving false or misleading evidence before an Australian Crime Commission examiner. A Commonwealth good behaviour recognisance is in force in relation to that offence until July next year.
Mr Forsyth has spent no time in custody on this offence, except for a brief period after he was released from prison in Western Australia in July this year and brought to the ACT under a warrant.
Personal circumstances
Mr Forsyth was born in New Zealand, and had a generally unremarkable but positive upbringing. He came to Australia at the age of 20 to pursue his boxing ambitions, and appears to have suffered for some time after that from the absence of support and day to day guidance from his parents.
10. From 2003 to 2007 he held a boxing scholarship at the AIS, and represented Australia at the Athens Olympic Games. He finished in fifth place in his event, but believes he was “robbed” of the bronze medal. From 2008 to 2011 he boxed professionally, and won all 10 of his fights.
11. After that, Mr Forsyth worked for some time in two nightclubs owned by his wife, but was later prohibited from working in the clubs under a prohibition order made under the Liquor Control Act as a result of his involvement in a violent incident. For a while he took over the care of his two young children while his wife worked, and she was obliged to continue as the breadwinner while he served the 12-month prison term I have already mentioned. Since his release he has been working in a wholesale fruit business with his brother; I am told that it involves working seven days a week, from which Mr Forsyth makes a net weekly income of about $1,000, and he also has a share in the business. His wife is now completing studies to qualify her as a lawyer. Their children are now six and three.
12. In a 2014 pre-sentence report, the author recorded concerns expressed by Mr Forsyth about whether his boxing career might have left him with a mild acquired brain injury, and also reference to problematic alcohol use in his 20s. There is no updated information about these issues, but the most recent pre-sentence report does report the beneficial effects of long-term psychological counselling that Mr Forsyth has been receiving. The report says:
During interview, Mr Forsyth appeared to demonstrate considerable insight into the antecedents of his offending behaviour, and readily identified impulsivity, poor consequential thinking and conflict resolution skills as factors contributing to his offending behaviour. He asserted that engagement in psychological counselling has enabled him to consider the consequences of his actions and recognised that the current offence would not have occurred had he removed himself from the situation. Upon reflection, Mr Forsyth further added that he had previously perceived walking away from confrontation as being weak and had also worked hard to address these distorted views and asserted, "I would handle this situation differently now." During the interview, Mr Forsyth further added that his time in custody provided him the opportunity to further reflect on his past behaviour and also recognised that his negative peer associations had also played a role in his prior offending behaviour.
13. The author of that pre-sentence report provided the following conclusions and recommendations:
Given that Mr Forsyth has taken the time to reflect on his decisions, actions and consequences of both, and has realised where he made the wrong decisions and how he should have dealt with the situation, it appears that his risk of re-offending in a similar manner is reduced.
...
The sentencing options available to the court were discussed with Mr Forsyth who expressed a willingness to comply with all of the requirements of a community based sanction. Mr Forsyth has successfully completed one prior period of community supervision, has stable employment and numerous supports in place. It is for these reasons that he is considered to be a suitable candidate for a community based disposition; however, given these protective factors and Mr Forsyth's minimal criminogenic needs, it is respectfully suggested that he would gain very little from a period of community supervision. Furthermore, any involvement with this service may be detrimental to his rehabilitation, ultimately drawing him further into the system.
14. I note at this point that neither a community service order nor a periodic detention order would seem to be available in Mr Forsyth's case, given his residence in Western Australia, and in fact also unavailable to me given the absence of any assessment of those matters before me today.
Delays
15. This matter has suffered from many delays, some but by no means all attributable to Mr Forsyth's conduct. The history of delay in the first six years after the offence is set out in my judgment on a stay application brought by Mr Forsyth under the Human Rights Act 2004 (ACT) in 2012 (R v Forsyth [2013] ACTSC 179).
16. Since the decision in the judge-alone trial was handed down in 2013, the matter has been further delayed. It has had to be adjourned on numerous occasions because of Mr Forsyth's failure to engage with the sentencing process, including by not maintaining proper communications with his lawyers, but also due to difficulties in arranging the preparation of the pre-sentence reports. Most recently the sentencing has been delayed by Mr Forsyth's incarceration in Western Australia.
17. The delays raise some difficult questions in the sentencing. This offence was his first non-traffic offence, and he would at the time have been entitled to some leniency in sentencing. On the other hand, the significant delays since this offence have enabled Mr Forsyth to demonstrate that the assault was not an aberration but apparently consistent with his general approach to life over the next few years. He is not to be punished now for those subsequent offences but they do reduce the scope for leniency in this sentencing.
18. On the other hand, in the eight years since this offence Mr Forsyth does appear finally to have made some progress in his rehabilitation. His criminal history suggests that he has put his tendency to violence behind him in the last four or five years, and I am told that his 12 months in prison have been a wake-up call – one can only hope that this is so.
19. There is one further significance of the delays in this case, although it does not apply to the delays since Mr Forsyth was found guilty of this offence two years ago. In refusing Mr Forsyth's application for a stay of proceedings against him because of delay, I noted that:
the finding of unreasonable delay may have implications (either in accordance with the Human Rights Act or otherwise) in any sentencing of Mr Forsyth.
and referred to my remarks in the matter of R v Klobucar SCC186/2010, Penfold J, 19 September 2013 (Klobucar).
20. In the Klobucar case, which involved similar delays in finalising a matter that were, to a minor extent, due to the accused's approach to the proceedings, I concluded that:
s 30 of the Human Rights Act requires me, in determining under the Crimes (Sentencing) Act what punishment is “just and appropriate” to take account of the breach of Mr Klobucar's human right to be tried without unreasonable delay that has been caused by the various delays in finalising this matter, very few of which can be even indirectly attributed to his own actions.
I note that the international jurisprudence in relation to the right to be tried without unreasonable delay does recognise that a person's choices as to how a matter is conducted may be taken into account in determining whether there has been unreasonable delay, to the extent that they affect steps necessary to deal with the matter and therefore the reasonable time that will be required, but I have not come across any suggestion that plea of not guilty, as such, deprives a person of any claim to trial within a reasonable time. The international authorities recognise that a sentence reduction may be an acceptable remedy for a breach of that right, but they do also suggest that such sentence reductions will generally be modest.
21. In this case, I consider that Mr Forsyth is entitled to a modest sentence reduction in recognition of delays caused in finalising this matter, to the extent that those delays were not directly attributable to his own conduct. I note in that context that a plea of not guilty is not conduct depriving an accused of a right to trial within a reasonable time.
Comparable sentences
22. Counsel referred me to the cases of R v Benjamin Taylor SCC53/2005, Connelly J, 22 July 2005 and R v Christopher Barbaro SCC471/2008, Penfold J, 17 June 2015, both of which involved ACT sentences for assaults occasioning actual bodily harm (in each case more serious bodily harm than resulted in this case). Mr Barbaro, who had no criminal history and went to trial, received a good behaviour order and 80 hours community service, while Mr Taylor, who had what was described as “a relatively clean record” and had used a weapon in the assault, but who had pleaded guilty, received a 12-month prison term with six months to be served in full-time custody. Those comparable cases certainly indicate points within the available sentencing range, but do not provide any more substantial guidance in this context.
Deterrence
23. Finally, I note that in sentencing Mr Forsyth I must be mindful of the importance of general deterrence in sentencing, and in particular the need to attempt to deter road rage incidents. On the other hand, I accept that Mr Forsyth is currently subject to other personal deterrence against further offending, in the form of the Commonwealth good behaviour order.
Sentence
24. Mr Forsyth, please stand. I record a conviction on the charge of assault occasioning actual bodily harm.
25. I now sentence you to imprisonment for four months. That sentence reflects a reduction from six months to recognise any unreasonable delays in finalising this matter.
26. The sentence will be immediately suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months, with security in the amount of $1,000. Noting the recommendation of the Western Australian pre-sentence report author, the good behaviour order will be subject only to the core conditions, without any supervision condition. I note in that context that you will presumably be returning immediately to Western Australia.
27. You will be given a written copy of the good behaviour order and it will be read to you by the court officials, but in short, it means that for the next 12 months you need to keep out of trouble. If you commit another offence between now and July next year, you have two suspended terms of imprisonment hanging over you – that's the one I've just imposed and the Commonwealth one – and if you commit another offence before 21 October next year, you may find yourself back before this court to be re-sentenced for this offence as well as possibly losing your $1,000 security, and any re-sentence could involve you serving some or all of that four-month suspended sentence in full-time custody.
28. If you have any particular questions about the orders I've just made, please ask the court officials or Mr Saeedi.
You may sit down, Mr Forsyth.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 29 October 2015 |