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:

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.

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

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.

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%.

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.

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]”.

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.

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.

Equally significant is the Victim Impact Statement that was read out by the victim. In this…

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.

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Details

AGLC: R v Henry [2018] ACTSC 34
Case: [2018] ACTSC 34
Decision Date: 27 February 2018

CaseChat Overview and Summary

The case of R v Henry involved the defendant, Henry, who was charged with recklessly inflicting grievous bodily harm. The matter was heard in a higher court, where Henry entered a guilty plea. The primary issue before the court was to determine the appropriate sentence for the offence. The court had to consider various factors, including the nature and circumstances of the offence, Henry's criminal history, and the principles of sentencing. The court also had to weigh the aggravating and mitigating factors presented by the parties.

The court examined the evidence presented, including the victim's injuries, the circumstances surrounding the incident, and the impact on the victim. The court took into account Henry's guilty plea as a mitigating factor but also considered the gravity of the offence and the need for general deterrence. The court emphasised the importance of sentencing that reflects the seriousness of the crime while also considering the individual circumstances of the offender. After carefully weighing all the relevant factors, the court determined the appropriate sentence.

In its reasoning, the court noted that while Henry's guilty plea was a mitigating factor, the offence involved a significant level of recklessness that resulted in grievous bodily harm. The court acknowledged the impact of the crime on the victim but also considered Henry's background and potential for rehabilitation. Ultimately, the court decided that a sentence of imprisonment was necessary to uphold the principles of justice and deterrence. The court ordered that Henry be sentenced to a term of imprisonment, with specific details provided in the judgment.

Orders

Orders of the court

See [17]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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