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 of the offence. He was born and
raised in Queensland and had a stable childhood until his mother’s death when he was
11 years old. Following her death, his relationship with his father deteriorated and he reported being relocated between different family members before he commenced living in youth refuges. He stated that he has not had contact with his family members for many years.
14. In 2019 the offender was informed that his 12-year-old son from a previous relationship had died.
Since his teenage years, the offender’s transient lifestyle has continued with significant
periods spent with no fixed address. He advised that in 2019 he was allocated a property
by ACT Housing and could return to accommodation upon his release from custody.16. The offender exited the formal education system during Year 11, although he stated that he obtained a Year 12 certificate via distance education while in custody. In the past he has worked as a labourer, kitchenhand and cleaner, but since 2012 he has been unemployed while in the community and reliant on Centrelink payments. He stated that he would continue to be reliant on such payments upon release.
17. The offender reported a history of problematic use of alcohol. He believed that this resulted in his criminal behaviours and contributed to his transient lifestyle. He claimed that he had not consumed alcohol since January 2018. He also has a history of polysubstance abuse which commenced when he was a teenager. Cannabis and methamphetamine were his drugs of choice and his use significantly increased when he learned that his son had died. This continued up until his was remanded into custody in March 2020 for the current offence. He acknowledged that he was under the influence of illicit substances during the commission of the current offence.
18. The offender reported that most of his associates are antisocial and that he is not engaged in any organised prosocial activities.
19. The offender reported that he has experienced mental health issues over several years. He has received no formal diagnoses, although while in the community he engaged with professional assistance for his mental health. He identified the death of his son in 2019 and the death of a friend in 2018 as stressors which had a negative impact on his mental health. He reported that he has been prescribed medication while in custody, although the author of the pre-sentence report could not verify this. He stated that his current mental health is stable and he intends to engage with assistance from professionals when released from custody.
20. The offender described his relationship with the victim as “on again, off again”, in which
they would break up and reconcile numerous times over many years. He acknowledged that he has perpetrated family violence against the victim. His description of the current offences was consistent with the Statement of Facts and he was able to articulate how his crimes affected the victim.
21. The author of the pre-sentence report was of the opinion that “[the offender] is a
35-year-old man with a significant criminal history related to alcohol and illicit substance
use.” The offender has been assessed as a high risk of reoffending. His primary risk
factors relate to family violence, mental health issues, alcohol and illicit substance use,
unemployment, antisocial companions and attitude.22. He has completed a number of programs while in custody designed to assist in avoiding reoffending.
23. The offender was assessed as not suitable for an intensive correction order or a community service work condition due to his ongoing drug and alcohol problems.
Criminal history
24. The offender has a long criminal history. He has convictions in Queensland for receiving property obtained by crime, obstructing police, attempted unlawful entry of a motor vehicle, possession of property suspected of being stolen or unlawfully obtained, being found in a dwelling house or yard without reasonable excuse, possessing a knife in a public place, unlawful use of motor vehicles, stealing, wilful damage to property which is part of an educational institution, unauthorised dealing with shop goods and possession of dangerous drugs.
25. In the ACT he has convictions dating back to 2009 for common assault, assault occasioning actual bodily harm, damaging property, recklessly or intentionally inflicting actual bodily harm, possessing a prohibited thing as a detainee, escaping from detention, possessing an offensive weapon with intent, driving a motor vehicle with alcohol in his blood or breath, being an unlicenced driver or rider, negligent driving, driving with a prescribed drug in his blood, driving while a suspension notice was in effect and minor
theft. The offender’s most recent offence prior to the current offending was in December
26. One of the common assault convictions relates to a prior assault against the victim in 2017. On that occasion a neighbour heard yelling and then witnessed the offender shove
the victim up against a wall. The police later entered the offender and the victim’s unit
and observed smashed items, holes in the walls and a large amount of blood on the floor.
He received a sentence of six months’ imprisonment which was concurrent with longer
sentences for common assault and possessing an offensive weapon with intent, the victims of which were people attempting to address his conduct towards the victim in this matter.
Plea of guilty
27. The offender pleaded guilty on 13 November 2020. This was three days before the trial was scheduled to commence and following a criminal case conference which occurred on 12 August 2020. The plea was entered on a fresh indictment following negotiations between the parties. Having regard to the decision of the Court of Appeal in Cranfield v The Queen [2018] ACTCA 3 and the utilitarian value of the plea, notwithstanding the timing of the plea he will receive a discount of approximately 10% on the sentence that would otherwise have been imposed.
Time in custody
28. The offender has been in custody since he was arrested for the present offence on 2 March 2020. Part of that period is not solely attributable to the current offending
because on 22 June 2020 he was sentenced in the Magistrates Court to one months’
imprisonment for breaching a good behaviour order (by reason of a conviction for minor theft), which was backdated to commence on 2 March 2020 and end on 1 April 2020. On this basis, 30 days of the period in custody since his arrest were not referrable solely to this offence. Therefore, although he has been in custody for a total of 340 days prior to today, only 310 of those are solely attributable to the present offending. I have taken into account the whole of the period in custody and will backdate the sentence imposed to the extent to which his pre-sentence custody is solely attributable to the grievous bodily harm offence.
Consideration
29. I will deal first with the current offence, namely that of causing grievous bodily harm.
Causing grievous bodily harm
30. The disrupted childhood of the offender and his early introduction to illicit drugs is a matter which must be taken into account. It must be recognised that these experiences are likely to have effects upon the offender for the whole of his life. However, it must also be borne in mind that the offender is now no longer a young man and there is little evidence of a strong motivation to address his illicit substance use.
31. The offending involved domestic violence inflicted upon a pregnant woman. It comes in the context of previous domestic violence offending directed against the same victim and a number of other convictions for assaults which resulted in custodial sentences.
32. While it is apparent from the letters written by the offender to the court today, and prior to being sentenced on a previous occasion, that he does have some insight into his own offending and recognises the need to free himself of illicit drug use, his history since then illustrates a difficulty with achieving those goals. His prospects of rehabilitation must, having regard to his history, be considered to be guarded at best.
33. The written submissions provided by the Crown helpfully included a summary of a number of sentences for causing grievous bodily harm in a domestic violence context: R v Robertson [2020] ACTSC 325; R v Smith [2020] ACTSC 277; R v Baxendale [2018] ACTSC 260; R v Dillon [2018] ACTSC 164. The submissions of the Crown also referred to R v Pikula [2015] ACTSC 380 and R v Rhodes [2020] ACTSC 324 which occurred outside the context of domestic relationships.
34. In my view, only a custodial sentence involving a period of full-time detention would be an appropriate sentence. The starting point will be a sentence of imprisonment of 22 months, reduced to 20 months on account of the plea of guilty. I will explain how this is to be served in a moment.
Breach of good behaviour orders and suspended sentence
35. The breaches of good behaviour orders are on:
(a) Charge CC2018/11738: negligent driving which led to a 12-month good behaviour order. (b) Charge CC2019/1612: drive while a suspension notice was in effect which led to a 12-month good behaviour order. (c) Charge CC2018/13698: driving with a prescribed drug in his blood (methylamphetamine and tetrahydrocannabinol) which led to a suspended sentence of two months’ imprisonment with a 12-month good behaviour order.
36. Each of the good behaviour orders were breached by the offender’s convictions for minor
theft (CC2020/2939) for which he received a sentence to the rising of the court. No further action was taken in relation to the first two good behaviour orders. On the suspended sentence the good behaviour order was cancelled and he was sentenced to imprisonment for one month.
37. So far as the good behaviour orders on the negligent driving and drive while subject to a suspension notice charges are concerned, I will take no further action.
38. So far as the suspended sentence is concerned, the good behaviour order has already been cancelled and the offender has already been resentenced. The cancellation and resentence occurred because of further offending. The resentencing involved the service of a period of imprisonment and no portion of the sentence was suspended. The period of imprisonment has now been fully served. The Crown submitted that it was still possible to take action in relation to this under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The offender submitted that it was not open to take action under s 110. As a matter of substance, in the circumstances I consider that it is appropriate to take no further action. That can be achieved by cancelling the good behaviour order and resentencing the offender to the same sentence that was imposed
upon resentencing by the Magistrates Court, namely a sentence of one months’
imprisonment from 2 March 2020 until 1 April 2020. For pragmatic reasons neither party wished to be heard against adopting this approach. I recognise that the idea of cancelling a good behaviour order which has already been cancelled makes little sense but in the context of this case, having regard to what in my view is the appropriate disposition, that lack of sense does not need to be further examined or commented upon. In another case the issue will have to be addressed.
Orders
39. The sentences give an aggregate sentence of 21 months. Counsel for the offender submitted that if the minimum time required to be served in full-time detention was to expire in the relatively near future then the court should proceed by way of a suspension of the sentence rather than by way of setting of a non-parole period. That was because of what he said would be the time that would be taken until a parole hearing could occur, giving rise to the potential that even if otherwise eligible for parole the offender would spend a significant period beyond the non-parole period in custody before being released. This is an issue upon which it would have been useful to have more information than some general statements by counsel from the bar table. However, in the circumstances of this case, having regard to the identified availability of accommodation and the potential for supervision pursuant to a good behaviour order, I consider that is the appropriate way in which to proceed. I will therefore suspend the sentence after a period of 13 months of the sentence upon the grievous bodily harm charge.
40. The orders of the Court are therefore:
1. On charge 2018/11738 in relation to the breach of the good behaviour order, the court takes no further action. 2. On charge CC2019/1612 in relation to the breach of the good behaviour order, the court takes no further action. 3. On charge CC2018/13698 the good behaviour order is cancelled and the offender is resentenced to one month imprisonment starting on 2 March 2020 and ending on 1 April 2020, which sentence has been fully served. 4. On the charge of causing grievous bodily harm (SCCAN2020/181) the offender is convicted and sentenced to imprisonment for 20 months commencing on 2 April 2020 and ending on 1 December 2021. 5. This sentence is suspended after a period of 13 months from 2 April 2020 until 1 May 2021 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of seven months with the additional condition that he be, during that period or such lesser period as is determined by the Director-General, on probation subject to the supervision of the Director-General and obey all reasonable directions of that person. I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 17 February 2021
MOSSOP J:
Introduction
1. The offender, Levin Heijm, has pleaded guilty to one charge of causing grievous bodily harm (SCCAN2020/181), contrary to s 25 of the Crimes Act 1900 (ACT) for which the
maximum penalty is 5 years’ imprisonment.
2. This offending is said to put him in breach of two 12-month good behaviour orders and a good behaviour order that was imposed as part of a suspended sentence by the Magistrates Court on 29 April 2019 on charges of negligent driving, driving while a suspension notice was in effect and driving with a prescribed drug in his blood.
| Facts | |
| 3. | The facts relating to the infliction of grievous bodily harm were agreed and are, in summary, as follows. |
| 4. | The offender had been in an on-and-off again relationship with the victim for approximately 15 years. Around midday on 7 February 2020 the offender and the victim were at home and an argument about their neighbour developed. The victim was sitting |
| on a bed in the loungeroom. The offender’s anger escalated and during the argument he | |
| applied force to her face. She felt pain to her face and right eye and when she blew her nose she expelled blood. At the time, the victim was 35 weeks pregnant. | |
| 5. | Later that day the offender and the victim travelled to the city together to attend separate appointments. The victim attended her scheduled appointment with her Probation and |
| Parole case manager. During the appointment the victim’s case manager observed her | |
| injuries. Her face was swollen and red, she had a cut lip and blood coming from her mouth and nose. The victim was tearful and emotional. She told the case manager what happened and spoke to the Domestic Violence Crisis Service (DVCS) over the phone. The victim eventually agreed to attend Calvary Hospital and to speak to police there. | |
| 6. | While at the hospital, the victim was assessed by medical staff. She reported blurry vision, light aversion in her right eye, dizziness and decreased hearing on the right side. She had significant swelling and mild bruising to the right side of her face and eye, as well as tenderness and grazing to her right eye. A Forensic Medical Officer reviewed photographs of the victim taken at the hospital on 8 February and observed bruising to her right eye region, right eyebrow, right upper jaw, mid-lower lip, right upper shoulder and upper arm. There were also abrasions to her mid-lower lip. The victim underwent a CT scan which revealed a blowout fracture to her right orbital floor with an 8 mm depression and a right periorbital haematoma (meaning, she had sustained a fractured right eye socket and a blood clot around her right eye). The Forensic Medical Officer was |
| of the opinion that the victim’s injuries were the result of blunt force trauma. | |
| 7. | The victim required antibiotics, opiate-like medication, as well as cardiotocography and neurological monitoring of the unborn child. No obstetric concerns or risk to the foetus were identified. During further medical review in March 2020 the victim reported right eye pain and worsening visual activity to her right eye was observed. |
| 8. | She disclosed to the hospital staff that she had been injured at home. She also spoke to police but did not want to disclose who had injured her or how it had happened. That evening the offender attended the hospital to see her but was refused entry. The victim |
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