R v Henry

[2018] ACTSC 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Henry

Citation:

[2018] ACTSC 34

Hearing Date:

27 February 2018

DecisionDate:

27 February 2018

Before:

Elkaim J

Decision:

See [17]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

Parties:

The Queen (Crown)

Mark Peter Henry (Offender)

Representation:

Counsel

Ms R Khazma (Crown)

Mr R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 108 of 2017            

ELKAIM J:

1. The offender was born in 1969. His parents were alcoholics and he is also an alcoholic. Alcohol has dominated his life for many years, and is responsible for his appearance before the Court today. It is also probably a key factor in his previous offending.

1. The offender has attempted to deal with his alcohol problem. Unfortunately, his attempts have so far been unsuccessful.

1. On 29 November 2017, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm. The maximum penalty for the offence is 13 years’ imprisonment.

1. The plea was entered following negotiations with the Crown. While it could not be considered an early plea, and while the plea was entered to a lesser offence than that originally charged, the offender is nevertheless entitled to a discount for the utilitarian value of his plea. I assess the appropriate discount at 20%.

1. The Crown tendered a Statement of Facts in these proceedings (Exhibit A). I do not intend to repeat its contents. It is sufficient to observe that, after consuming a large amount of alcohol, the offender struck the victim with a sword, causing very serious injuries. The sword belonged to another person who had been in an argument with the victim earlier that day. The offender was not involved in that argument and had no reason to become involved.

1. The offence was not premeditated, in the sense that there had not been any degree of planning. It did, however, involve the deliberate taking of the sword and a deliberate swinging of the sword “directly at [the victim]”.

1. The offender does have some history of mental health issues. In particular, he seems to have been diagnosed with a Post-Traumatic Stress Disorder. This may or may not have been a factor in his offending. If it was, it was not to an extent that entitles the offender to any leniency.

1. The injuries suffered by the victim are detailed in a medical report from a Dr Van Dieman, dated 21 July 2017. The injuries are extensive. They include the severing of the jugular vein and a major neck muscle. The victim also suffered a fracture to a vertebra in his neck and a compression fracture in his thoracic spine. The medical report provides a technical explanation of the injuries.

1. Equally significant is the Victim Impact Statement that was read out by the victim. In this statement, the victim discusses his disfigurement, disabilities, the limitations on his movement and the effect the offence has had on his social and financial life. The injuries have essentially dominated every aspect of his daily life, and will probably continue to do so for the rest of his life. The nature and extent of the injuries make this an objectively serious offence.

1. It was telling that, after the victim left the witness box, he also left the Court. In case he was under any misapprehension about his right to remain in Court, I informed him that he need not leave. He said that he wished to do so. I have no doubt that this was because of the continuing emotional impact the injuries have had upon him.

1. Mr Davies, on behalf of the offender, emphasised the role that alcohol played in the offence and said that the Court should regard the resolution of the offender’s alcohol problem as a matter of primary concern. To this effect, it was suggested that I defer sentence to allow the offender to enter into a rehabilitation program. While I agree that the offender needs to deal with his alcohol problems, I note that he has failed to do so in the past. Even if he were to achieve some success, he will still return to Court and need to be sentenced.

1. There is no reason why the offender cannot pursue rehabilitation in prison or after serving his sentence.

1. I think that imprisonment is the only available option in this case. Mr Davies is correct in his assertion that the injuries could have been worse. However, that is not a reason to treat the offence as any less serious.

1. I have taken into account the purposes and principles of sentencing, as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). I am also acutely aware of s 10, which states that imprisonment should be a last resort. There are, of course, elements of deterrence, both specific and general, that are important here. However, the seriousness of the attack on the victim, and the injuries that he suffered, dominate my decision.

1. There are indications of remorse on the offender’s part. I note that he telephoned ‘000’ after the event and made himself known to police when they arrived. In addition, he ministered to the victim’s wounds after he had inflicted them. I have taken these matters into account. In addition, the offender’s criminal record, by its contents, has not had any effect on my decision.

1. I intend to impose a sentence of 18 months’ imprisonment. This has been reduced from 22.5 months as a result of the 20% discount. I note that the offender was in custody for three days before being granted bail. Accordingly, his sentence will commence on 24 February 2018.

1. I make the following orders:

(a)In respect of the offence of recklessly inflict grievous bodily harm (XO 2017/31260), the offender is sentenced to 18 months’ imprisonment commencing on 24 February 2018 and ending on 23 August 2019.

(b)I set a Non-Parole Period of 15 months commencing on 24 February 2018 and ending on 23 May 2019.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 27 February 2018