R v Gardner
[2022] ACTSC 36
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gardner |
Citation: | [2022] ACTSC 36 |
Hearing Date: | 4 March 2022 |
DecisionDate: | 4 March 2022 |
Before: | Norrish AJ |
Decision: | See [78] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – intentionally inflict grievous bodily harm – offence committed in custody against another inmate – application of the parity principle – impact of traumatic upbringing on offender’s personal circumstances – “Bugmy principles” – mental health – importance of general deterrence in the context of offending in custody – relevance of moral culpability – conviction recorded – suspended sentence – good behaviour order |
Legislation Cited: | Crimes Act 1900 (ACT), ss 19, 25 Crimes (Sentencing) Act (ACT), ss 7, 33, 35, 36, 64, 65, 72 Criminal Code 2002 (ACT), s 45 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | The Queen (Crown) Jaiden Gardner (Offender) |
Representation: | Counsel E Wren (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Number: | SCC 153 of 2021 |
NORRISH AJ:
The offender, Jaiden Gardner, appears today for sentence in relation to a charge of intentionally inflicting grievous bodily harm on Marco Zanatta at Canberra on 28 March 2020. This is an offence contrary to s 19 of the Crimes Act 1900 (ACT), and I am informed by the Crown it carries a maximum penalty of 20 years' imprisonment.
The offender pleaded guilty on 24 November 2021. At least it can be said that he pleaded guilty before the trial was to start on 29 November 2021. I have had regard to s 35 of the Crimes (Sentencing) Act2005 (ACT). I will refer to it hereinafter as 'the Sentencing Act'.
I have had regard to the submissions of the parties and the chronology placed before me of relevant events and I am satisfied that there is utilitarian benefit in the plea of guilty in a range of ways. Whilst the offender is not entitled to a discount of 25 percent, which would be the maximum discount one could provide for a plea entered at the first reasonable opportunity, the utilitarian value of the plea of guilty is, in my view, worth more than the utilitarian value of a plea entered on the “doorstep” of the court the day of the commencement of the trial.
I am informed the offender has been in custody for this matter from 21 October 2021. I am informed that is a period of 135 days. There is no reason to specifically count the number of days because the sentence I impose will include the period of time spent in custody, but the minimum period of time in custody will expire well after today's date.
The offence that the offender is for sentence occurred at the correctional facility in the Australian Capital Territory (ACT), the Alexander Maconochie Centre. The offender was there a detainee on remand in relation to an offence subsequently dealt with by Elkaim J to which I will refer in a short while. The victim was known to the offender and the offender and the victim had some past history which I will reflect upon shortly. The offender went to an area where Mr Zanatta had been placed. He having been charged in relation to an allegation that he had assaulted a young woman who was known to the offender on 11 March 2020. Mr Zanatta was remanded on 20 March 2020 in custody and the assault occurred approximately eight days after his committal to custody awaiting the determination of his matter.
The Statement of Facts sets out in detail the character of the area where the assault occurred. But the short and most pertinent facts are that Mr Zanatta returned to the cell that he normally occupied, or had been placed in that very day only an hour before, after attending muster. The facts make clear that there is closed circuit television (CCTV) which can readily identify each of the people involved in this affair.
The offender, in company with a man named Cook, who is being dealt with by Elkaim J in respect of another offence but related to the offence with which I am concerned, went to the cell of the offender. The cell door was closed behind the two men when they entered by them. The offender was carrying a coffee mug in his hand. There was some discussion with the victim, which was apparently friendly enough but eventually the offender turned on a kettle, sitting on the bottom bunk. The three men smoked cigarettes, apparently, for a period of time in a civil atmosphere but when the kettle boiled, the offender stood up and punched the victim to the head multiple times. The victim ultimately felt woozy and collapsed partially off the chair upon which he was sitting.
When he was on the ground eventually, the offender poured the jug of boiling water that had been turned on earlier over the victim and kicked him a number of times to the head. During this interaction, the victim rolled over onto his stomach and the offender kicked the victim to his middle and lower back a number of times. Then the offender and his co‑offender left the cell. The co-offender threw a towel onto Mr Zanatta as they left. This whole incident, from the time the offender entered the cell of Mr Zanatta at 4.58pm took approximately four minutes by reference to CCTV footage. When the offender exited the cell, he was no longer carrying his mug and he had evidence of a liquid splash upon his clothing.
The victim was attended to by staff. There are other details in relation to the attendance upon the victim. Ultimately, he was observed by correctional officers to have injuries with bleeding from the head, particularly from his left eye and nose, redness on his upper torso and the skin beginning to peel as a result of the pouring of boiling hot water upon him. A pool of fresh blood gathered on the floor below him where he had been lying and there was a broken jug in the shower area. The victim was very disoriented and in extreme pain and initially was unable to relate what happened to him, whether that was deliberate on his part to avoid the implications or ramifications of dobbing in somebody I cannot say.
The forensic evidence that was gathered in the manner described in the facts I need not dwell upon. But most importantly, for the purposes of this sentencing exercise, the facts reveal the victim sustained burns to 13 percent of his total body surface, including to his face, neck, back, shoulders and left hand. 11.5 percent of the body surface were superficial partial burns and 1.5 percent of the body's burns were “deep partial thickness burns”. They were so significant that the victim had to be transferred to an interstate burns unit, where he was operated upon under general anaesthesia and treated accordingly.
There was no way that the wounds that he suffered or the injuries that he suffered would have healed on their own or without terrible pain and suffering. His pain score at the time of first assessment was said to be 10 out of 10. He was managed with drug treatment, including morphine. He required regularly prescribed opiate medications one would expect to control his pain and he was discharged on the hospital on 8 April, approximately 10 days after the attack.
The various injuries he suffered were a superficial laceration to the left eyebrow, bruising and swelling around the left eye, a lower lip laceration – these all consistent with the blows to the head – a contusion to the right frontal region of the face, a wound within his mouth in the location of the lower lip, extending into the muscle, post-traumatic amnesia, indicative of significant head injury, blurriness to the left eye and left rib pain. Ultimately he has permanent scarring of the deep partial thickness of the neck from the burn in that area and permanent scarring to the lower lip.
I have photographs of him taken shortly after the events the subject of the charge. I have no photographs of him in his current state. He has not provided a victim impact statement to the court. As the Crown properly points out, the character of these injuries, the pain that was caused by them and the scars that are remaining as permanent reminders of them, would have caused the victim substantial anguish.
The offender was born in August of 1995. He is thus now aged 26. At the time of the commission of the offence with which I am now concerned, as I best calculate it, he was 24 years of age. He, as I said, was on remand for an offence of causing grievous bodily harm at the time of the offending. He was ultimately not charged for this matter as I would understand the chronology of events, until after that earlier matter had been dealt with by Elkaim J for a different type of assault, an offence of causing grievous bodily harm, which I would understand to be a different offence albeit with common elements to the offence with which I am now concerned.
Having regard to the circumstances of that offending, which have been summarised by the Crown, he was sentenced to 12 months' imprisonment, suspended immediately on entering into a good behaviour order for 12 months. I would expect in the context of the case that has been conducted on behalf of the offender and the circumstances of the background of the offender that a number of the matters that are known to me at the present time, although not all, would have been taken into account by his Honour, both legally and factually, in arriving at the decision that the case was worthy of a term of imprisonment to be wholly suspended.
The conviction of the offender in respect of the offence of causing grievous bodily harm, an offence committed before the offence with which I am now concerned but dealt with in October 2020, is a relevant matter in the consideration of this case. His convictions in the ACT primarily are largely offences of dishonesty and driving offences, although he does have a conviction for aggravated burglary involving an intention to steal or an intention to commit theft, for which he was sentenced to a total sentence of seven months' imprisonment in May 2020.
He has findings of guilt in the Childrens Court. All of these matters I must say to my mind are consistent with circumstances of his background, to which I will come to in a moment, that reflect the difficulties in his upbringing. Amongst the material I have, apart from the detail of his criminal history, is the Statement of Facts that was tendered in relation to the co-accused Cook, and I have also a copy of Mr Cook's criminal history in the ACT and New South Wales (NSW).
It must be said Mr Cook has at least as formidable a record as this offender and has prior findings of violence. He was an older man than this offender, being born in November 1987 and thus, on my calculation, 32 years of age at the time of this offence. That having been said, he pleaded guilty to a lesser charge carrying a maximum penalty of five years' imprisonment when he was sentenced by Elkaim J on 7 February 2022 (R v Cook [2022] ACTSC 17). The offence to which he pleaded guilty to was an offence of causing grievous bodily harm contrary to s 25 of the Crimes Act by virtue of s 45 of the Criminal Code 2002 (ACT). The maximum penalty was five years' imprisonment and the extent of the pleading was to identify him as being “knowingly concerned in another person causing grievous bodily harm”. He was clearly present and there to assist this offender if needs be, but it is clear, even if the two men had been charged with the same offence, that one would have to take the view that this offender was the lead offender. He inflicted all the punishment on the victim. But, in any event, as I said, Mr Cook's crime carried a much lesser maximum penalty than that applying in this particular matter.
Elkaim J determined that the appropriate term of sentence in the context of Mr Cook's personal circumstances as they were relevant both to objective and subjective matters should be 24 months' imprisonment, reduced by 25 percent to 18 months' imprisonment, that term of imprisonment wholly suspended. Mr Cook had given some undertaking to assist the Crown, it would seem, and was given a five percent discount to reflect his willingness to cooperate with the authorities in relation to the prosecution of Mr Gardner in accordance withs 36 of the Sentencing Act.
Mr Cook also received, as I understand it, a discount of 20 percent upon the otherwise appropriate sentence for the utilitarian value of his plea of guilty. He did plead guilty before this offender, but not a great deal of time before the offender, when the matter involving the two offenders was listed for trial. I have taken his sentence into account as a relevant matter. But of course, as was pointed out in the course of address, it is not a matter where strict parity issues arise. Putting aside the differences in personal circumstances of the two offenders, the differences in the objective facts relating to the involvement of the two offenders and the different maximum penalties are a significant difference between this offender and Mr Cook.
However, it must be said, as I would understand Elkaim J's judgment – and I do not have all the material that was before his Honour in relation to Mr Cook – there are some significant matters, in my view, relating to this particular offender that effect to offer a basis for taking an approach that might otherwise not be taken to give effect to the disparity between the two offenders.
The issue of parity reflects the concept of ‘equal justice’ and equal justice is as it is described in Aristotelian principles of equality, as treating alike alike and the unalike unlike to the extent of their un‑alikeness on reasonable and rational grounds. So it was described by Rothman J in a NSW decision of Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540, a judgment that is reflected in the reasoning of the High Court discussing issues of parity in Green v The Queen [2011] HCA 49; 244 CLR 462.
Of course, the evidence does not start and end with the objective facts as they are available from the statement of facts and the criminal history of the offender. I must say in relation to the criminal history of the offender that it does not entitle him to any great leniency. But it does not disentitle him to some consideration of leniency and it does not disentitle him to consideration of the issue of the promotion of his rehabilitation, having regard to his age and the circumstances relating to his background, which I will dwell upon shortly.
The matters relating to his background come to the court in a number of ways. There is a pre-sentence report that has been prepared by ACT Corrective Services, which report is a thorough report. It is not altogether favourable, it must be said, but it is an up‑to‑date report of 1 March 2022, setting out details of his background that are supported and in fact expanded upon in a handwritten statement written by the offender's mother. The offender, by reference to the criminal history - which I have not set out in total detail - has a criminal history going back to when he was 14 years of age. He has had multiple interventions from the ACT Corrective Services and his response to services provided has been “mixed”; sometimes periods of satisfactory compliance but sometimes subject to breach actions, and I have taken those matters into account. Many of the breaches related to his use of illicit substances.
He was released from the detention centre where he was held in March 2020 to enter the Oolong House Residential Rehabilitation Program located in Nowra. This is a drug rehabilitation program primarily designed to assist indigenous offenders and other indigenous people. He completed that program over four or five months, which is to his credit, and gives some evidence of his capacity for reform. But, unfortunately, as the pre‑sentence report makes clear, he resorted back to illegal drug use. I should point out of course that resort back to illegal drug use occurred after the commission of the offence with which I am now concerned.
He gave a history to the ACT Corrective Services officers relating to his background. He has nine siblings in total. He describes the conduct of his stepfather as that of a violent man. He had been placed in child protection at about the age of four. There is detail, both in the mother's statement and elsewhere in the psychiatric report, as well as the pre-sentence report, of the offender having his legs broken and being denied medical attention for up to four days when he was four years of age, an entirely disgraceful set of circumstances.
He was able to return to his family at the age of nine, his stepfather having been the subject of allegations of physical abuse over a lengthy period of time. It was only on this return to the family home, upon the separation of his stepfather and his mother when he was 13 years of age, with him coming and going from the family home in the meantime, that he discovered that his stepfather, who he believed was his natural father, was not so. His stepfather has been dead for some years. He has a continuing relationship with his mother.
He has been in a relationship with his current partner according to the pre-sentence report for approximately five years. He has a 10-year-old daughter from a previous relationship, a three-year-old daughter from the current relationship as well as other children from his partner's previous relationships. There are instabilities in that relationship. So far as his 'Aboriginality' is concerned, if I may describe it as that, he knows little about his ‘Aboriginal’ heritage but is willing to use Aboriginal services if required. He has some history of employment.
He has poor educational opportunity obviously. His literacy is below average. He has worked mainly in manual work in the construction industry, furniture removal and in gardening. With regard to his history of drug use that is set out in the pre-sentence report including information available to the service from its records as well as the history given by the offender, he has a history of use of amphetamines and/or heroin since the age of 12.
His mother's statement is very much a harrowing document. She speaks, in addition to the incidents of violence towards the offender by his stepfather, of incidents of violence towards her by the same man, sexual assaults committed upon her and the guilt the mother felt about her not extricating her children from the situation
She states that she and the offender and other children were homeless at various points of time. When he was nine or 10 years of age, she describes circumstances in which she and he and presumably other children slept under “bridges” because they had nowhere to go. The violence of the stepfather towards the mother is described by her as “extreme”. The perpetuator not only committing acts of violence against the offender and his mother and the other children but also acts of violence against himself as acts of attention seeking amongst other things.
The mother goes into great detail in relation to the extent of the violence meted out to her. Sometimes she was beaten so badly she could not walk. Sexual assaults committed upon her when she was pregnant, including sexual assaults committed in the presence of the offender and other children. It is a harrowing account of severe domestic violence that obviously must have had a substantial impact upon the offender as reflected in the psychiatric report that has been provided. I thank the offender’s mother for the information. It confirms as true, in my view, much of the family history of the offender provided in the pre-sentence report.
The psychiatric report reflects upon his traumatic upbringing, sexual and physical abuse included, and reflects upon his use of illicit drugs and his mood changes over periods of time, delusions that he had suffered from and other effects upon him including nightmares and flashbacks and the like. He, at the present time, does not suffer from any physical health conditions but apparently, he is being provided in custody an anti‑depressant described, in my research, as an “atypical anti-depressant”. He would wish to obtain access to another prescribed drug but that is not possible within the confines of the ‘correction centre’ where he now is.
He denied any substantial history of head injuries. During the course of the interview with the psychiatrist he became very agitated when asked to discuss his background, as one would understand. The doctor opined that the presentation of the offender, and other material available to her, supported a diagnosis of borderline personality disorder, as well as a diagnosis of cannabis stimulant and opiate use disorder. These disorders, of course, may contribute to antisocial behaviour, and it is correct to say that they can also contribute to aggressive behaviour.
One of the features of the presentation of the offender is the fact that he has suffered in the past auditory hallucinations which are thought to be, in the opinion of the psychiatrist, attributable to his personality vulnerabilities, “stemming from early exposure to traumatic events”, rather than from underlying psychotic illness. He has not been using illicit drugs in custody. He was, in the opinion of the psychiatrist, a person who could be regarded as suffering from a complex “post-traumatic stress disorder”.
He noted in the history available to him in the context of extensive physical and sexual abuse in the home environment and significant injuries to his body and the like, that the history of intrusion, symptoms such as nightmares and flashbacks associated with traumatic events that were reported by him, and the history of avoidant behaviour and negative alterations in mood, as well as increased levels of arousal, such as sleep problems, irritability, exaggerated startle response and impaired concentration were associated with and consistent with a complex post-traumatic stress disorder.
He opined that his earlier experiences in life had led to a development of what she described as “maladaptive personality traits”, including poor impulse control and other matters, particularly difficulty in regulating his anger which is entirely apparent from the circumstances of this offending.
To be fair, as the Crown pointed out, the diagnosis of the psychiatrist might need to be considered as provisional in all of the circumstances of the matter. But when one has knowledge of the circumstances of his upbringing, it would be no surprise to understand that the offender has, for a period of time, had symptoms and attitudes and behavioural issues entirely consistent with having suffered some form of post-traumatic stress disorder, and his life experiences have clearly had an impact upon him in terms of his personality disorder as described by the psychiatrist.
With so much to consider in a summary of the evidence available to the court, what does it mean for the purposes of this sentencing exercise? I should point out by reference to the pre‑sentence report that the report of the ACT Corrective Services officer noted that whilst the offender was suitable for a high level of intervention by the ACT Corrective Services, consistent with the assessed risk at the present time, the dynamic risks for the offender included ongoing difficulties with substance use issues, mental health, his attitude towards the offending employment, and his associations and use of leisure time.
The offender, in seeking to explain his conduct to the psychiatrist, which remained at the point of arrest unexplained, identified what appears to be a motive for the attack upon the victim. The victim was known to the offender. When asked about the circumstances of the offence by the officer from ACT Corrective Services, the offender told that officer that what had happened to the victim, in terms of violence perpetrated upon him, was something that he had “coming to him”. The offender claimed that he reacted as he did because he too had been victimised as a child and that that had an impact upon his thinking at the time of the offence.
He expressed no remorse or empathy for the victim to the Corrections officer and seemed to be concerned that he had been charged in relation to the matter, whereas the victim had not been charged with any of the offending claimed by the offender. The offending of the victim claimed by the offender includes, by reference to the history given to the psychiatrist, a claim that the victim was a “paedophile”, that the victim had sexually assaulted the offender, and, of course, was in remand at the time of the commission of this offence for having assaulted a woman that was known to the offender.
I cannot act upon the conclusion, or even a reasonably open finding, that the offender was the subject of any sexual assault by this particular victim. It certainly is the case, as the objective facts identify, that the offender, knowing the victim, had a reason for attacking him in the way he did. It seems to me that, even allowing for the objective seriousness of an act of vigilantism if that is what it was, the offender’s attitude and conduct towards the victim very much reflected the desensitised condition of the offender arising out of the upbringing that I have sought to summarise from the material available to me.
His counsel submitted, quite properly, that the reasons the offender has given should be considered as explaining why the offender did what he did, in the sense of, as I would understand it, the attack being 'unprovoked'. But one could not conclude that this was a provoked attack. The very circumstances of the attack were such that the offender took advantage of the fact that the victim had no appreciation of the danger that awaited him by inviting in or having the offender and the offender’s co-accused in his cell. In any event the explanations given by the offender speak of vigilantism, but a vigilantism that very much was grounded in the circumstances of the offender’s background.
This evidence in relation to his background and his mental state at the time of the offending, as explained by the psychiatrist, and his general mental state over a period of time, gives rise to a consideration of two very important matters in this sentencing exercise in the context of considering s 7 of the Sentencing Act. That provision sets out the various purposes of sentencing and the section makes clear these include general and personal deterrence, making the offender accountable for his conduct, providing adequate punishment, recognising the harm done to the victim, promoting the offender’s rehabilitation, amongst other matters.
In considering the issue of general deterrence, and also the related issue of personal deterrence, one needs to turn to a consideration of the principles laid out in the decision of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), particularly at, for example, [40]-[44]. In that judgment, the court was considering the case of an Aboriginal man from a very deprived community on the western fringes of NSW at Wilcannia who assaulted a prison officer.
In the judgment of the High Court, the majority of the Court reflected upon the relevance of disadvantage in a sentencing exercise, and made the observation ultimately that there were no 'special' rules for Aboriginal people, but the circumstances of Aboriginal people and a circumstance of a deprived upbringing and other matters relating to disadvantage were relevant in the sentencing exercise.
The Court pointed out at [43], amongst other things, that indeed:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
At [44], the majority of the High Court went on to say:
Because the effects of profound childhood deprivation do not diminish with the passage of time in repeated offending, it is right to speak of giving “full weight” to the offender's deprived background in every sentencing decision.
Their Honours went on to point out, as Gleeson CJ when Chief Justice of the New South Wales Supreme Court delivered the judgment in R vEngert (1995) 84 A Crim R 67, that where a matter arises that may require less weight to be given to general deterrence, or less weight to be given to moral culpability as it might be relevant to general deterrence, the circumstances of a particular offender may require greater weight to be given to specific deterrence if the person continues to be a danger to the community.
In fact, this is the very point made in an earlier judgment of the High Court of great significance in sentencing in Australia of Veen v The Queen(No 2) (1988) 164 CLR 465, where the majority of the Court identified four of the current seven or eight purposes of sentencing set out in s 7. It made the point that those various purposes of sentencing were like “guideposts”, sometimes they pointed in opposing directions. But it also made the point that where a person who, by reason of their mental disability, remained a danger to the community, this was a matter that might require greater weight to be given to personal deterrence. The reduction of moral culpability here is pertinent to the weight to be given to general and personal deterrence.
I have taken into account the judgment in Bugmy and related judgments, including Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian) and the decision of R v Fuller-Cust [2002] VSCA 168; 6 VR 496 (Fuller-Cust), approved by the majority of the High Court in Munda v Western Australia [2013] HCA 38; 87 ALJR 1035, a decision of the High Court handed down the very same day as Bugmy, where many of the same issues were discussed but from a different perspective. In Fuller-Cust, Eames JA, then a judge of the Court of Appeal, reflecting upon relevance of a person's Aboriginality to sentencing – which remains an issue here, notwithstanding some of the matters relating to the offender’s circumstances I have identified before – said that recognition of a person's Aboriginality seeks to ensure that a factor relevant to sentencing that arises from the offender's Aboriginality is not overlooked by a simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored. That is precisely the point that arises here. Having regard to a person's upbringing by reason of, for example, their family background will always remain a relevant matter in the sentencing exercise to distinguish a particular offender in relation to other offenders, or distinguish a particular offender's offending from offending committed by other offenders on other occasions said to be comparative.
In this matter, the other aspect of the matter is that it is clear to me that, notwithstanding some qualifications identified by the Crown is that there can be seen a relationship between the accused's mental instability or his mental – his personality development, and the circumstances of his upbringing to explain the character of the offender’s offending on this occasion. Particularly his direction of violence towards a person that he, the offender, regarded as a violent person who, to use his expression, “got what he deserved”. As I said in the course of submissions, this is not a matter that should receive any form of judicial approval, but having said that, it does assist in understanding the conduct of the offender.
So far as that aspect of the matter is concerned, I turn to the authorities that discuss the relevance of an offender's mental condition in the sentencing exercise. The Victorian decision of R v Verdins [2007] VSCA 62; 16 VR 269 (Verdins) is of course important and has been approved in this court on a number of occasions.
Verdins was considered by McClellan, then the Chief Judge of the Common Law Division of the NSW Supreme Court, in the judgment of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa), particularly at [177]-[178], where his Honour reached conclusions, approved by the other four judges of that Full Bench, that where a state of a person's mental health can contribute to the commission of the offence in a material way, an offender's moral culpability may be reduced, and consequently the need to denounce the crime by way of greater weight to general deterrence, although that still remains relevant, may be reduced with a reduction of the sentence. It may mean in a particular case that a custodial sentence may weigh more heavily on the person, although that issue does not arise here. It may reduce or eliminate the significance of specific deterrence. It may, however, conversely, if there be a mental illness that creates a danger to the community, require greater weight to be given to specific deterrence by increasing the sentence. I do not believe the offender presents as a danger to the community.
Following upon De La Rosa and Verdins, there are judgments such as the decision of Kearsley v The Queen [2017] NSWCCA 28; 265 A Crim R 233 where the court has concluded that even if the mental condition of an offender at the time of offending did not causally relate to the offending, it was still relevant in the De La Rosa sense to considerations involved in the sentencing process.
Justice Button recently, in the decision of Moiler v The Queen [2021] NSWCCA 73, said this at [59]:
[C]are should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence.
I also note the recent decision of the High Court in R v Guode [2020] HCA 8; 267 CLR 141, particularly the judgment of the majority at [8], relying upon Verdins, observed:
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
Here, general and personal deterrence are moderated to some extent by the offender’s mental state. The offender has given, as I have quoted, some history of the manner in which, by reason of his past experience, an explanation of his lack of control in his attack upon the victim which is a relevant matter to take into account.
This discussion of Bugmy principles, and of principles relating to the treatment of people with mental impairment relevant to the offending or subsequently is undertaken in the context not only of a consideration of s 7 of the Sentencing Act and the purposes of sentencing but also based upon a particular authority drawn to my attention by the learned Crown Prosecutor, consideration of the proper approach to sentencing offenders who commit crimes such as this upon fellow inmates. Particularly, the Crown draws my attention to decisions such as R v Winters [2019] ACTSC 245, R v Roberts [2020] ACTSC 296, and R v Collier [2022] ACTSC 18, not only for the purposes of comparative sentencing considerations, which obviously are important. Because s 33 of the Act requires me, amongst other matters that I have taken into account to have regard to sentencing patterns that are contemporary to the current situation. But also important are the observations that have been made in those cases as to the importance of ensuring that general deterrence is not ignored to protect the interests of those in custody who are vulnerable to assaults of this type, as well as the fact that assaults in custody of the type with which I am concerned, and there are a number of examples in the cases provided to me, are matters that reflect upon the need for courts to take appropriate action to try to prevent them occurring in the future. Noting, of course, the vulnerability of victims in custody when confronted by others who wish to do them harm.
I have had regard to the various sentences identified in the Crown's
“schedule”. I have not cited all the cases. One such case perhaps I should cite as a case in many respects both subjectively and objectively are different from the case with which I am concerned, are the respective sentences imposed upon Mr Yuen, in 2013 and then again in 2019 for inflicting grievous bodily harm upon other prisoners where the offender himself was a person convicted or to be convicted of murder and who clearly presented himself as a danger to other people in custody: R v Yuen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 14 June 2013); R v Yuen [2019] ACTSC 70.
Comparative sentences to the extent that the facts are similar and the subjective circumstances of offenders are similar can be of relevance and use in the sentencing exercise, but such comparisons do have their limitations as was discussed by the High Court, for example, in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [45].
One matter that I have not specifically addressed up until this point that is important too, in the context of the maximum penalty providing a guideline or a guidepost as to the appropriate sentence, is the categorisation of the objective offending for sentence. The written submissions of the Crown would suggest as I would have understood them, that the objective seriousness of the offending was such as to warrant categorisation towards the higher end of the scale of offending contemplated by the section. I appreciate, as the learned Crown pointed out, that expressions such as ‘mid‑range’ of objective seriousness and the like are expressions that arise more particularly out of legislation in other states. But they have been used from time to time in this jurisdiction and have been used before me and appear even in the written submissions presented in this case.
The High Court judgment in Makarian, particularly at [30]-[31], pointed out that legislatures do not enact maximum available sentences as mere formalities. All judges, in sentencing an offender for a particular offence, need sentencing yardsticks. The maximum sentence for a particular offence may in some cases be a matter of great relevance, particularly when dealing, of course, with the worst‑case situation. But, as has been pointed out in Makarian, there are a range of considerations to be had. The High Court said at [31]:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick.
There has been a detailed discussion about this aspect of the matter and the difficulty of identifying a starting point for a sentence, in the New South Wales Court of Criminal Appeal decision of Mills v R [2017] NSWCCA 87, particularly at [50]-[54]. The High Court has also discussed matters relating to the “worst-case” category in the decision of R v Kilic [2016] HCA 48; 259 CLR 256, particularly at [18].
I discussed with the learned Crown directly this issue, in light of the particular submissions put in the written submissions by the Crown. The Crown properly pointed to aspects of the offending, the fact that the victim was alone, the fact that the offender was in company, that there was some premeditation clearly in the conduct of the offender, which I accept. The planning might have been rudimentary, but certainly the offending was premeditated, evidenced by the offender taking the mug into the cell, in my view, as an excuse for commencing the operation with the jug, which was later used to boil the water that was poured heartlessly upon the victim.
That having been said and noting what has been said in the authorities about the significance of offending of this type in correctional institutions, it is to be said that an important matter to bear in mind in regard to the assessment of the objective seriousness is that the section contemplates ‘grievous bodily harm’, which can include, as I pointed out earlier to repeat myself; paraplegia, permanent brain injury and amputation of limbs. In other words, serious bodily harm which could be fairly said to be far more serious than the bodily harm with which I am concerned here, as serious as it is. Grievous bodily harm can include broken bones, leaving no permanent disability. This victim has some permanent scarring, but no permanent disability, and whilst he suffered a great deal of pain, ultimately, in the context of the range of injury that could be categorised as ‘grievous bodily harm’, and noting all other features of the case, I would regard the offending as not at the lowest level of seriousness, but below what has been conveniently referred to as the middle range of objective seriousness of offending of this type.
The Crown Prosecutor's written submissions have dealt with in some detail the objective seriousness. It is correct, I might say, by reference to the Crown's written submissions, whilst there was no provocation by the victim, this is not an attack upon a stranger for absolutely no reason. As his own counsel pointed out, the offender had no justification for doing what he did, and it is certainly not the offender’s responsibility to take into his own hands the punishment of others for alleged misconduct. But, clearly, the offender’s conduct towards the victim had its grounding not only in what I see as the circumstances of his upbringing, the desensitisation of him to the effect of violence upon others, but also his knowledge of the conduct of the victim or his belief as to the previous conduct of the victim.
I have had regard, as I have mentioned, to s 33 of the Sentencing Act and various matters required to be taken into account there, including the plea of guilty, as required pursuant to s 35 as well. I have had regard to sentencing patterns, the circumstances of the offender, his physical and mental condition and his criminal history. The plea of guilty is available as some evidence of contrition. But it is clear from the pre-sentence report, for the reasons I have identified, the offender does not have real contrition or remorse for his conduct, at least at this stage. In some respects there is some explanation for that, as I have identified. I have taken onboard clearly the importance of the need for deterrence, both general and specific, having regard to the character of the offending.
One case cited by the Crown in terms of setting out principles in that regard is Horan v O'Brien [2021] ACTSC 323. Mossop J at [16]-[17] with great eloquence identifies pertinent and perfectly relevant matters. That decision, however, became even more pertinent in this sentencing exercise when the Crown drew to my attention, as it had I believe escaped me beforehand, the terms of the Sentencing Act at ss 64 and 65 of the Act.
Section 64 of the Act provides that in respect of that Part of the Sentencing Act, that is Pt 5.2, the court is required not to impose a non-parole period when a sentence of imprisonment is imposed on an offender and the sentence of imprisonment involves one that is referred to as an excluded sentence of imprisonment. An excluded sentence of imprisonment includes a sentence of imprisonment imposed for an offence committed while in lawful custody.
Section 64 must be read with s 65 of the Act. Section 65(1) provides that if the court sentences an offender to a term of imprisonment of one year or longer, or two or more terms of imprisonment that total one year or longer, the court must fix a non-parole period during which the offender is not eligible to be released on parole. Those two provisions, however, read together do not exclude the opportunity to provide a period of supervision not by way of parole but by other means under the Sentencing Act. Particularly by suspending a sentence of imprisonment either fully or partially to permit an offender to enter into a good behaviour order.
This aspect of the matter was discussed in part in Horan v O'Brien, where Mossop J was dealing with an appeal from the Magistrates Court. In fact, I read that judgment over the luncheon adjournment, and particularly I had regard – although his Honour did not expressly direct his attention or discuss ss 64 and 65 – [23] of his judgment notes the fact that although s 72 of the Sentencing Act emphasised the need to deny leniency to persons who commit offences whilst in custody, it, in its terms, does not deny the capacity for the court to structure a sentence in a way which permits a period of supervision in the community, as his Honour described it, and permits other means for giving effect to the promotion of an offender's rehabilitation.
A decision brought to my attention by learned counsel for the offender is R v Gordon [2021] ACTSC 283, a judgment of Elkaim J again, and particularly his Honour's observations at [23]-[24] that:
Because the offence occurred while the offender was in custody, the provisions of ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) and s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) serve to complicate the manner in which he can be sentenced… A strict application of these provisions would result in a very long sentence…
His Honour went on to indicate that there was a mechanism in light of the particular facts of that case for his Honour to approach the matter on the basis of suspending the sentence of imprisonment after a period of time without the need to address the question of having no power to fix a “non-parole” period.
Both the Crown and defence in this particular matter have indicated to me that it is open to the court to consider the issue of a term of imprisonment that was at least partially suspended to permit a period of supervision, which is definitely required in the case of this particular offender having regard to the relevant purpose of sentencing relating to the promotion of the rehabilitation of offenders.
In that regard, I have determined that after giving an appropriate discount for the utilitarian benefit of the plea of guilty, but noting, notwithstanding the character of the offending and the location of the offending, the need to give proper weight to both Bugmy principles and the principles that arise out of Verdins and De La Rosa that I should impose a term of imprisonment of three years’ imprisonment suspended after 18 months to permit the offender to have 18 months of supervision by way of a good behaviour order. In that way there is, I hope, a balance given to consideration of the need for adequate punishment and giving weight of course to deterrence which still remains present, both in the general sense and the personal sense, but also in some way promoting the rehabilitation of the offender. It is a constant challenge for judicial officers, noting what I have said about the judgment of the High Court in Bugmy, to strike the right balance between the inevitable punishment involved in a person being placed in custody despite reduced ‘moral culpability’ and the resultant damage that that can do to an individual and trying to provide some opportunity in the future for the offender to take advantage of the conditional release to the community to endeavour to avoid offending in the future.
Otherwise, I have had regard to everything else that has been put to me in the written submissions of the Crown, as I have said, and orally by both the Crown and the defence.
I note, of course, that the s 10 threshold had clearly been passed. No other penalty could be imposed for the offending other than a term of imprisonment. That was freely accepted in the submissions put on behalf of the offender. I make it very clear that I have approached the manner I have by regard to the desire to promote the rehabilitation of Mr Gardner, amongst other “purposes”.
Orders
The orders of the Court are:
1.I record a conviction for the offence.
2.In respect of the offence of “intentionally inflicting grievous bodily harm” (SCCAN113/2021) I sentence the offender to three years’ imprisonment commencing on 21 October 2021 reduced from three years and six months’ imprisonment.
3.Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) the sentence of imprisonment is suspended from 21 April 2023 upon the entry by the offender into a good behaviour order for a period of 18 months, commencing on 21 April 2023 and expiring on 20 October 2024, with core conditions pursuant to s 86 of the Crimes (Sentence Administration ) Act 2005 (ACT): including supervision by the Director of Corrective Services requiring the offender to comply with reasonable directions by the Director as to anger management and drug use treatment and rehabilitation.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: 10 March 2022 |
6
22
0