R v Hambesis
[2020] ACTSC 202
•28 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hambesis |
Citation: | [2020] ACTSC 202 |
Hearing Date: | 27 July 2020 |
DecisionDate: | 28 July 2020 |
Before: | Robinson AJ |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – assault occasioning actual bodily harm – theft – plea of guilty – limited criminal history – suspended sentence – good behaviour order |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Criminal Code 2002 (ACT), s 308 Crimes (Sentencing) Act 2005 (ACT), ss 7, 35 |
Cases Cited: | The Queen v Stacker [2020] ACTCA 34 |
Parties: | The Queen (Crown) Stanley Hambesis (Offender) |
Representation: | Counsel R Christensen (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) United Legal (Offender) | |
File Number: | SCC 339 of 2019 |
Robinson AJ:
Introduction
Stanley Hambesis, the offender, and a co-offender Sione Tuifua participated in events which occurred on 29 July 2019 whereby Simon Evans was assaulted and had the contents of his wallet and a car stolen at an address at Holt, Australian Capital Territory. Each of the offenders had different parts to play in what transpired on that evening. Mr Tuifua has been sentenced in separate proceedings by Burns J.
On 19 May 2020, the offender pleaded guilty to the following offences:
(a)Count 1: Assault occasioning actual bodily harm (CC2019/8923), contrary to s 24 of the Crimes Act 1900 (ACT), with a maximum penalty of five years’ imprisonment; and
(b)Count 2: Theft (SCCAN2020/77), contrary to s 308 of the Criminal Code 2002 (ACT), with a maximum penalty of 10 years’ imprisonment, 1000 penalty units, or both.
The plea was entered in consequence of a fresh indictment being agreed between the parties, limiting the offences to be prosecuted against the offender. This was agreed at a criminal case conference on 12 May 2020. The trial of the matter had been set down for 15 June 2020.
The offender has spent no time in custody in relation to these offences.
Facts
In around 2014, the offender met the complainant through their then-partners. Their friendship broke down after the offender separated from his wife in about 2015 or 2016. The complainant believed that the offender blamed him for the breakdown of his marriage.
Shortly before 25 July 2019, the complainant met the co-offender through a friend, Ms Jacobs. The co-offender then sent the complainant a message on Facebook.
Count 1: Assault
Around midnight on Monday 29 July 2020, Ms Jacobs invited the complainant via Facebook message to come to their friend Ms Smith’s house. The complainant and another friend, Ms Jessop, came to the house. Inside were Ms Jacobs, Ms Smith and Ms Reed.
Later, the offenders came to the house. Ms Smith answered the door. The complainant was seated in the living room.
The offender entered the house and saw the complainant. The offender told the complainant words to the effect of “you ruined my marriage”. The offender approached the complainant and began to punch him a number of times on the head. The complainant fell to the ground.
The assault continued for approximately two minutes. The complainant was hit mainly around the face and the head, but also in the back and around the ribs. A witness indicated that the complainant was kicked while he was on the ground.
At one stage, the offender put the complainant in a chokehold and said words like “this is what you get for ruining my life”. The complainant bit the offender on the left forearm.
The complainant sustained bruising on the cheekbones, eye sockets, head and lower back, as well as abrasions to his back.
Count 2: Theft
After the assault, the complainant handed over his wallet to the offender. The offender took items from the wallet, including a driver’s licence and a few hundred dollars of cash.
The offender maintains that his conduct in relation to the theft was at the direction of Mr Tuifua. It is not necessary to make a specific finding about this matter.
The offenders then left the house. The complainant reported the incident to police. On or about 9 August 2019, the offender was arrested by police.
Objective seriousness
This was an unprovoked beating of the complainant. The photographic evidence records some aspects of the impact and severity of the blows. Fortunately, there are no long-term disabilities. The offending falls somewhere near a mid-range level of offending coming within the elements of the offence.
The theft was carried out after the violence ceased but which, no doubt, caused the wallet to be handed over to the offender.
Motivation/Remorse
The motivation for the offending appears clear enough. The offender blamed the complainant for the breakdown of his marriage. No other motivation is apparent from the circumstances of the offence.
It is not useful to even attempt to determine whether the offender’s perception is correct.
The stealing of the contents of the wallet appears motivated by an attempt to further punish the complainant for this breakdown although the co-offender appears to have had a part to play in the initiation of this offence.
Subjective features
The offender is now 60 years old.
The offender was born in Sydney but moved to the ACT in 1981 to train at the Australian Institute of Sport as a weightlifter.
After finishing Year 10 the offender completed an apprenticeship in building after which he has been continuously in the construction industry in one role or another.
His first marriage lasted 18 years and he had two children from it who are now aged 25 and 23. That marriage ended in 2005. He remarried and that second marriage of 10 years has recently come to an end with family law proceedings being current.
Significantly, although the offender has several traffic offences which involved illicit substances on his record, at the age of 60, he has not otherwise come to the attention of police.
The offender stated to ACT Corrective Services that the end of that marriage and his anger towards the complainant contributed to the current offences. He stated that the offences were not premeditated and he was unaware that the complainant would be at his friend’s house. He told the author of the pre-sentence report that, upon reflection, he now feels angry with himself for his behaviour and embarrassed to be “in this situation at his age”. The offender indicated that he would like to apologise to the complainant.
The author of the pre-sentence report assessed the offender as at a medium to low risk of general reoffending.
The offender was assessed as suitable for community service work condition.
On the material before me, I find the offender’s conduct on 29 July 2019 was out of character and that that conduct was not likely to be repeated given his age, an appropriate lifestyle and the fact that he has otherwise not engaged in any crimes of violence or dishonesty.
Other sentencing considerations
In terms of s 7 of the Crimes (Sentencing) Act 2005 (ACT), a number of the factors set out do not play a prominent part having regard to my conclusions above. It still remains necessary to ensure that the offender is adequately punished for the offending in a way that is just and appropriate. In this case, I find that there are other alternatives to an order that the offender serve a sentence of imprisonment by way of full-time detention at a correctional centre.
Parity
It would ordinarily be necessary to consider and take account of the disposition of the sentencing proceedings against the co-offender. However, it is common ground between the parties that the offending for which the co-offender was sentenced, and the subjective characteristics of that co-offender, do not throw up parity of sentencing considerations.
Plea of guilty
As can be seen from paragraphs [2]-[3] above, the offender’s pleas of guilty came after negotiation at the criminal case conference and after the prosecuting authorities had downgraded the counts preferred against the offender. This may have provided the opportunity to discuss the application of s 35(2) of the Crimes (Sentencing) Act to the situation where an accused person had maintained a plea of “not guilty” to offences of some gravity but had changed his or her plea at a criminal case conference to “guilty” when the same acts alleged against the offender were reformulated by the Crown into offences of less gravity. Some of the relevant factors are referred to in the recent dissenting judgment of Loukas-Karlsson J, in The Queen v Stacker [2020] ACTCA 34 at [106]-[113].
This case does not present the occasion. I did not hear full argument on the matter. I allow a discount of approximately 20% for the pleas of guilty pursuant to s 35 of the Crimes (Sentencing) Act.
Order
The orders of the Court are:
1. For the offence of assault occasioning actual bodily harm (CC2019/8923), I sentence the offender to a period of two years’ imprisonment. I reduce this by five months by reason of the matters set out above.
2. For the offence of theft (SCCAN2020/77), I sentence the offender to a period of imprisonment of six months. I reduce this by one month by reason of the matters set out above.
3. Each sentence will commence on 28 July 2020.
4. I suspend the sentences of imprisonment upon the offender entering into a good behaviour order for a period of 19 months from 28 July 2020, together with the following additional conditions:
(a)to be subject to the supervision of the Director-General, or that person’s delegate, and obey all reasonable directions of that person for the period of the suspension, or such lesser period as deemed appropriate by the supervisor;
(b)to report to the Correctives Services Duty Officer forthwith;
(c)to report to the Correctives Services Officer at Level 1, 249 London Circuit, Canberra within two working days of entering this order; and
(d)to perform community service work for 50 hours and to complete that work within 12 months from the date of this order.
| I certify that the preceding [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson Associate: Date: 28 July 2020 |
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