R v Heijm - [2021] ACTSC 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Heijm
Citation:	[2021] ACTSC 17
Hearing Date:	5 February 2021
Decision Date:	5 February 2021
Before:	Mossop J
Decision:	See [40]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – causing grievous bodily harm – low end of mid range objective seriousness – domestic violence – pregnant victim – subject to
good behaviour orders and suspended sentence at the time of the
offence – resentenced to imprisonment – disrupted childhood – history of drug and alcohol problems – long criminal history including a previous assault against the same victim – high risk of reoffending – suspended sentence of imprisonment and good
behaviour order imposed
Legislation Cited:	Crimes Act 1900 (ACT), s 25 Crimes (Sentence Administration) Act 2005 (ACT), s 110
Cases Cited:	Cranfield v The Queen [2018] ACTCA 3 R v Baxendale [2018] ACTSC 260 R v Dillon [2018] ACTSC 164 R v Pikula [2015] ACTSC 380 R v Rhodes [2020] ACTSC 324 R v Robertson [2020] ACTSC 325 R v Smith [2020] ACTSC 277
Parties:	The Queen (Crown) Levin Heijm (Offender)
Representation:	Counsel
S Naidu (Crown) K Archer (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Darryl Perkins Solicitors (Offender)
File Number:	SCC 111 of 2020

told police that she was scared and wanted to speak to the offender in the presence of
the police. She did so, before the offender left and she returned inside the hospital.
9. DVCS members later contacted police on the victim’s behalf to report that she had been
assaulted by the offender. The victim decided that she was prepared to make a statement to police and she participated in a family violence evidence-in-chief interview on 8 February 2020.

The following day the police attended the offender’s residence but could not locate him.
He was eventually arrested on 2 March 2020. The offender agreed to participate in a record of interview in which he denied the allegations that were put to him.

Objective seriousness

11. The offending was an example of domestic violence. It occurred in the victim’s home.
The victim was heavily pregnant. It occurred at a time when the offender was on conditional liberty. The form of grievous bodily harm inflicted was at the low end of the spectrum of harm which constitutes grievous bodily harm. The deliberate vagueness of
the Statement of Facts when it describes that the offender “applied force” to the victim’s
face makes it hard to assess culpability, other than to say that the acts of the offender are accepted to be unlawful or negligent and to have occurred in the context of an
argument where the offender’s anger was escalating. The offending is at the low end of
the mid range of objective seriousness for this offence.

Subjective circumstances

12. The subjective circumstances of the offender are set out in a pre-sentence report dated 28 January 2021.
13. The offender is 35 years old and was 34 at the time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Heijm

Details

AGLC: R v Heijm [2021] ACTSC 17
Case: [2021] ACTSC 17
Decision Date

CaseChat Overview and Summary

Levin Heijm, the offender, has been convicted of causing grievous bodily harm to a pregnant woman, his former partner, and sentenced in the Supreme Court of the Australian Capital Territory. The incident occurred on 7 February 2020, when the offender assaulted the victim at their home, causing significant injuries, including a fractured right eye socket and a blood clot around the right eye. The victim was 35 weeks pregnant at the time of the assault. The offender was subject to good behaviour orders and a suspended sentence at the time of the offence. The primary legal issue before the court was to determine an appropriate sentence for the grievous bodily harm offence, considering the offender's extensive criminal history, his troubled background, drug and alcohol issues, and the context of domestic violence. The court found that the offence was at the low end of the mid-range of objective seriousness due to the victim being pregnant and the history of domestic violence. The offender's subjective circumstances, including his disrupted childhood, drug and alcohol problems, and high risk of reoffending, were also taken into account. The court imposed a sentence of 20 months imprisonment for the grievous bodily harm charge, reduced to 20 months due to the offender's guilty plea. The sentence was suspended after 13 months, subject to the offender complying with good behaviour obligations and probation supervision for seven months. The court also dealt with breaches of good behaviour orders and a suspended sentence, ultimately imposing a sentence of one month imprisonment for the breaches, which had already been served.

Orders