R v HN (No 2)
[2021] ACTSC 194
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v HN (No 2) |
Citation: | [2021] ACTSC 194 |
Hearing Date: | 24 August 2021 |
DecisionDate: | 24 August 2021 |
Before: | Murrell CJ |
Decision: | Good behaviour order is cancelled. Re-sentenced to the rising of the Court |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – breach by further offending – where breach offence is of a different type to the original offence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 |
Cases Cited: | R v HN [2019] ACTSC 375 |
Parties: | The Queen ( Crown) HN ( Offender) |
Representation: | Counsel S Janackovic ( Crown) T Sharman ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number(s): | SCC 323 of 2011 |
MURRELL CJ:
Original offences and sentences
On 15 November 2012, Justice Burns (the sentencing judge) sentenced the offender to a total sentence of seven years’ imprisonment (from 2 June 2011 to 1 June 2018) for offences committed on 2 April 2011 and 1 June 2011. At the time of the offences and when sentenced, the offender was a young person (born April 1994).
The individual sentences were as follows.
(a)Wounding: 12 months’ imprisonment, from 2 June 2011.
(b)Wounding (taking into account two additional sentences of assault): 24 months’ imprisonment, from 2 June 2011.
(c)Theft: good behaviour order for 12 months, from 15 November 2012.
(d)Intentionally inflict grievous bodily harm: six years’ imprisonment, from 2 June 2012. Three years and five months’ imprisonment to be suspended from 2 January 2015, on a four-year good behaviour order, from 2 January 2015 to 1 January 2019.
At 1 AM on 2 April 2011, near the Belconnen bus interchange, the offender approached two victims, held one victim and stabbed him twice in the stomach with a knife. When the second victim went to the aid of the first, the offender stabbed him in his left arm. As they ran away, one of the victims dropped his telephone. The offender seized it.
On the afternoon of 1 June 2011, an associate of the offender invited the victim and his friends to a unit under a pretence. After the victim arrived, he was trapped in a bedroom, where he was punched and kicked to the floor. The offender stabbed the victim numerous times with a flick knife while the offender’s friends stood nearby. The victim suffered lacerations to a kidney, his spleen, both lungs and his lower stomach, underwent two emergency operations, and was left with permanent scarring to the torso.
In the sentencing judge’s reasons for sentence, his Honour noted that the offender had been born in a refugee camp in Kenya, the middle child of seven children. When the offender was five years old, the family moved to Sudan. About five years later, they returned to Kenya. When the offender was 13 years old, his family migrated to Australia and settled in Canberra.
When he was sentenced, the offender described his upbringing as positive. However, he now appreciates that the violence to which he was exposed as a refugee has had a very damaging impact upon him.
The offender’s father died in December 2011, when the offender was in custody. The sentencing judge was informed that the offender had the support of his mother, siblings, schoolfriends and the Sudanese community. He attended church regularly. He had undertaken Year 11 studies while in custody and planned to complete Year 12. He had obtained certificates in fitness and, in the long term, wished to become a personal trainer and run his own business. The offender planned to maintain fitness, obtain employment and cease substance abuse.
The offender recognised the association between substance abuse and his violent behaviour. He was assessed as being at moderate risk of reoffending.
The sentencing judge was satisfied that the offender had reasonable prospects of rehabilitation if he addressed alcohol abuse.
Sentence following first breach of good behaviour order
The good behaviour order associated with the suspended sentence (imposed for the offence of intentionally inflicting grievous bodily harm) was breached by the commission of the following offences.
(a)Common assault (domestic violence) committed on 19 February 2017, for which, on 30 June 2017, he was placed on a nine months’ good behaviour order with conditions focused on rehabilitation.
(b)Drive while licence suspended, drink driving (three offences readings of 0.250, 0.089 and 0.236g of alcohol per 210L of breath) for which, on 3 July 2019, he received a five months’ suspended sentence (for drink driving on 19 January 2019), was fined and disqualified from driving for two years.
For the original offence of intentionally inflicting grievous bodily harm, on 12 August 2019, the sentencing judge re-sentenced the offender to 12 months’ imprisonment, fully suspended on a good behaviour order for 12 months (from 12 August 2019 to 11 August 2020): R v HN [2019] ACTSC 375. The good behaviour order was subject to conditions, including the condition that the offender accept the supervision of the Director-General of Corrective Services.
In re-sentencing the offender, the sentencing judge noted the significant progress that the offender had made since November 2012, which included obtaining qualifications, maintaining employment, and helping to support his family.
New breach
On 18 June 2020, the offender breached the good behaviour order associated with the suspended sentence that had been imposed on 12 August 2019 by committing the offence of driving while disqualified. He also committed offences of driving a vehicle that was unregistered and uninsured.
Police attention was drawn to the offender’s vehicle because it had been unregistered and uninsured since 28 April 2020. When they stopped the vehicle and checked the offender’s licence, they discovered that he had been disqualified since July 2019.
After the expiry of the suspended sentence imposed by the sentencing judge on 12 August 2019, on 30 April 2021 and 10 July 2021, the offender committed further offences of drive while disqualified, drink driving and using an unregistered and uninsured motor vehicle to drive to work.
On 6 August 2021, Magistrate Stewart imposed fines for the offences of driving an uninsured and unregistered vehicle on 18 June 2020. His Honour also fined the offender for the fine only offences committed on 30 April and 10 July 2021. The offender has not yet been sentenced for the offence of driving while disqualified on 18 June 2020 or the offences of driving while disqualified and drink driving committed on 30 April and 10 July 2021. In relation to those matters, he has been in custody since 10 July 2021 and will be sentenced by Magistrate Stewart tomorrow. His legal representative will seek an intensive corrections order.
A pre-sentence report prepared for the sentencing proceedings before Magistrate Stewart stated that the offender resided with his mother and three siblings. He was employed full-time as a bricklayer and enjoyed his work. Commencing with binge drinking at 15 years of age, his drinking problem had escalated until about 2020, when he reduced alcohol consumption at his then partner’s insistence. More recently, he has been consuming about 10 standard drinks on a Saturday night. He enjoys playing rugby league with a community club and spending time with his football friends, who lead prosocial lives.
The author of the report considered that the offender had “multiple protective factors including stable accommodation, employment, financial stability as well as pro-social relationships with family members and friends”. Nevertheless, his general risk of reoffending was medium, primarily because of the offender’s dismissive attitude towards the driving offences and problematic alcohol consumption.
The offender tendered a letter in which he described his father’s death in December 2011 as a turning point in his life. Since then, he has seen himself as responsible for his family, whom he has let down. He hopes that, when he is released from custody, he can return to his former employment. He has arranged for transport to and from work.
The original offence of intentionally inflicting grievous bodily harm was committed more than a decade ago. The breach with which I am dealing was committed towards the end of the 12-month good behaviour order imposed by the sentencing judge on 12 August 2019. While the offender appears to have a well-entrenched drinking problem, which was associated with the original offence, the breach offence is of a different type. Other than the offence of common assault, in the past decade the offender has committed no offence of violence. In these circumstances, it would be pointless to impose the 12 months’ sentence of imprisonment or to re-sentence the offender to any sentence of substance.
I am satisfied that the offender has breached the good behaviour obligations required by the good behaviour order made on 12 August 2019. Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel the good behaviour order and re-sentence the offender to the rising of the Court.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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