R v Howell
[2018] ACTSC 155
•25 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Howell |
Citation: | [2018] ACTSC 155 |
Hearing Date: | 25 May 2018 |
DecisionDate: | 25 May 2018 |
Before: | Mossop J |
Decision: | See [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – intentionally or recklessly inflicts actual bodily harm – off duty police officer – punches cause fractured cheekbone and nerve damage – general deterrence – denunciation – recognition of harm – period of imprisonment fully suspended upon entering a good behaviour order |
Legislation Cited: | Crimes Act 1990 (ACT), s 23 Crimes (Sentencing) Act 2005 (ACT), s 15 |
Cases Cited: | R v Forsyth [2015] ACTSC 326 R v Johnson [2018] ACTSC 128 R v Saulala [2016] ACTSC 48 |
Parties: | The Crown (Crown) Wade Joseph Howell (Offender) |
Representation: | Counsel K Weston-Scheuber (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number: | SCC 99 of 2017 |
MOSSOP J:
Introduction
Following a trial before a jury, the offender was found guilty of one count of intentionally or recklessly inflicting actual bodily harm contrary to s 23 of the Crimes Act1900 (ACT). The maximum penalty for that offence is imprisonment for five years. He was found not guilty of recklessly inflicting grievous bodily harm, unlawfully choking, suffocating or strangling a person and attempting to pervert the course of justice.
Facts
The offender was an officer in the Australian Federal Police (AFP). He was in Canberra doing a course in Close Personal Protection. It was a Friday night. He had been out with work colleagues and had been drinking at Mooseheads Pub and Nightclub (Mooseheads), amongst other drinking establishments. He was significantly affected by alcohol. He left Mooseheads and followed a woman who had also left Mooseheads and was walking towards the Medina Apartments on the corner of Cooyong Street and Northbourne Avenue. He struck up a conversation with her. He walked with her to the Veterans Park on Mort Street where the two of them sat down on a bench and continued talking.
The boyfriend of the woman (the complainant), who had been left in Mooseheads, had departed those premises shortly after his girlfriend. He had spotted her walking with the offender some distance ahead of him and followed them in an attempt to catch up. The complainant approached the offender and his girlfriend at a fast walking pace. He was a lightly built man of Sri Lankan background.
As he quickly approached, the woman said to him “it’s a police officer, don’t hit him”.
The offender stood up and pushed the complainant back. The complainant said, “what the fuck?” The offender then struck him once in the head and the complainant fell to the ground. The offender then straddled the complainant and continued to punch him while he was on the ground. He punched him multiple times in the head, including at least one punch to the left hand side of his face and nose. The complainant was on the ground with his arms pinned beneath him.
I accept beyond a reasonable doubt the evidence of the woman and the complainant that at some point when the complainant was on the ground the offender’s hand was around the complainant’s neck. The jury found that he was not guilty of intentionally and unlawfully choking strangling or suffocating him. Consistent with that verdict, I find that it has not been established beyond reasonable doubt that he intentionally squeezed the complainant’s neck. As a consequence, although I find beyond reasonable doubt that the complainant was rendered unconscious by the attack, I cannot be satisfied that it was because of the blows to the head or the squeezing of the neck or some other cause.
The Crown excluded beyond reasonable doubt the defence of self-defence because it showed that the offender could not have had reasonable grounds for believing that one punch was necessary to defend himself, let alone the multiple punches that he actually inflicted.
The conduct of the offender following the incident is relevant only in relation to his lack of remorse for his conduct. It involved going with the complainant back to his hotel, persuading the woman that she did not want the complainant to stay in the hotel, calling police, then describing the incident in a manner that diverted police attention away from the assault that he committed upon the complainant and instead focussing on what he described, falsely, as the woman’s desire to leave the relationship with the complainant. The offender was content to exploit the submissiveness to authority of the complainant in order to minimise the consequences of his own unlawful acts. Subsequently, when completing a report of the incident for internal police purposes, he once again described the incident in a manner which falsely downplayed his own criminal conduct, most particularly, failing to describe that he punched the complainant in the head multiple times. The offence was only properly investigated because of the commendable conduct of two junior officers who reported the incident to AFP professional standards officers as a matter which, notwithstanding the decision of the case officer, required further investigation.
The conduct subsequent to the assault does indicate a complete absence of remorse or contrition for his conduct. That lack of remorse or contrition continued to the trial where false versions of the assault were put in cross-examination to both the complainant and the woman, namely that there was only one punch. Following the verdict of the jury, there has been no expression of remorse, contrition or any recognition of the harm done to the complainant.
The injuries that the complainant suffered were at the medium to high end of the range for the offence of inflicting actual bodily harm.
He suffered bruising and swelling to the bridge of his nose, abrasions with associated bruising over the bridge of his nose, bruising and swelling over his left cheek, multiple areas of bruising and swelling of the forehead, a possible nasal fracture and other areas of bruising and redness. Most significant, however, is the depressed comminuted fracture (that is, a fracture into multiple pieces) of his cheekbone which extended to the nasal bone and infra orbital foramen. The particularly serious aspect of this injury is that it involved the infraorbital nerve. As a consequence of the damage to this nerve, the complainant still suffers sharp pains in his cheek when he bends down, walks, steps or trips. He has also suffered from numbness of his mouth and front teeth on the left‑hand side of his face. He also suffers from numbness on the roof his mouth and cannot taste food anymore. Surgical intervention is not possible because there is a prospect that any such intervention would cause more damage. There is likely to be some further improvement in his condition but any improvement will be slow and take several years. It is not possible to accurately predict how the function of the nerve is going to resolve.
The events on that night have also clearly continued to affect the complainant. While he said in his evidence that he had tried to put the events out of his mind, recalling them in the manner in which he was required to for the purposes of giving evidence was clearly distressing to him and reflective of the substantial physical and psychological trauma inflicted upon him by the offender. He continues to suffer the physical consequences of the offender’s violence and will do so for the indefinite future.
Objective seriousness
The objective seriousness of the offence must be judged by reference to both the nature of the behaviour in which the offender has engaged, indicating his level of moral culpability, as well as the nature and extent of the actual bodily harm suffered by the victim. The offending behaviour is a violent attack on a person who was not acting in a manner that warranted any form of violence. It occurred in the early hours of the morning in Civic. To the extent to which his conduct was influenced by intoxication, that intoxication was self-induced. Even at the point of sentencing there was no real explanation for his conduct, the evidence available indicating that he did not have a predisposition to act violently when intoxicated. He was a police officer who was in the course of being trained in personal protection. He was not under any relevant threat and had no reason to deploy the significant violence that he did. The circumstances are such that his moral culpability is high. Because of the long-term consequences of the assault, the actual bodily harm is at least above the mid range of severity. As a consequence, the offence is at the mid to high range of objective seriousness for the offence of inflicting actual bodily harm.
Subjective circumstances
The subjective circumstances of the offender are disclosed by a series of references from his family and friends which were admitted. In considering those references, I have given no weight to the portions which appear to be inconsistent with the verdict of the jury and taken statements which appear to be inconsistent with the jury’s verdict into account when assessing the weight to be given to the relevant reference as a whole.
The offender was born in 1981, is presently aged 36 and was aged 34 at the time of the offence. His father was a member of the Australian Defence Force and he grew up in various locations around the country. The family settled in Perth in 1991 so that the offender and his sister could conclude their schooling. Upon leaving school, the offender wished to join the police service and in order to do so he completed a degree in justice studies from Edith Cowan University.
He joined the AFP in 2006 at the age of 24. References from two Detective Superintendents and a Detective Sergeant within the AFP attest to him being “a respectful, caring, thoughtful person who is reliable, honest and trusting”, an “honest, hard-working, loyal and a very good ‘people person’ with a high empathy level” and “a competent and dedicated police officer, who is able to adapt to any role requirement, and undertake any task with minimal fuss and with a high degree of enthusiasm”.
He has a partner, who is an officer in the AFP, and one child, who is three years old. That relationship commenced in December 2009. The offender spent a year in Canberra away from his partner in 2010 and 2011.
His son was born in 2015 as result of in vitro fertilization (IVF) treatment. His partner returned to work as an intelligence officer with the AFP in March 2016, just before the offence occurred.
As a result of the offending conduct and the subsequent professional standards investigation, he was suspended from work with pay. In June 2017, he was then suspended without pay. During the course of the trial, he was given a notice to show cause why he should not be dismissed from the AFP and as a consequence resigned from the AFP. He has subsequently obtained work as a forklift driver.
Each of the references that were given attest to the fact that he is a sociable and non‑aggressive person. Even those who have seen him on social occasions when he has consumed alcohol describe him as non-violent. They describe the incident in question as being an act which is out of character.
The subject material indicates that the offender is otherwise a person of good character. His conduct on the evening in question was influenced by his level of intoxication but there was never any proper explanation for the conduct. The consequences of his actions have clearly been catastrophic in terms of his career which was one in relation to which he was dedicated and competent.
The offender has no criminal history.
Comparable cases
Counsel for the Crown referred me to three cases relevant to current sentencing practice: R v Forsyth [2015] ACTSC 326, R v Johnson [2018] ACTSC 128 and R v Saulala [2016] ACTSC 48. Each of these cases involved convictions for assault occasioning actual bodily harm under s 24 of the Crimes Act rather than intentionally or recklessly inflicting actual bodily harm under s 23, but having regard to the similarity of the offences, they are nevertheless of utility. R v Forsyth involved a road rage incident in which an experienced boxer inflicted at least eight blows upon the complainant. The offender had a minimal criminal history. He was given a suspended sentence of imprisonment of four months and a 12 month good behaviour order. R v Johnson involved a young woman kicking another woman in the head twice so as to cause bruising and tenderness. She had a criminal history which consisted only of several minor traffic infringements. It resulted in a good behaviour order for two years with 100 hours of community service. R v Saulala involved a fight in a Canberra nightclub involving a number of people acting with a common purpose to assault the victim which led to a 22 centimetre laceration to the back of his head and neck. The offender was affected by alcohol and amphetamines. The offender had a limited criminal history, although it did involve one offence of violence. He received a sentence of 16 months imprisonment of which four months was to be served by way of periodic detention. As Penfold J observed of a similar selection of cases in R v Forsyth at [22], these cases certainly indicate points within the available sentencing range but do not provide any more substantial guidance than that.
Consideration
As I have indicated, the offender’s conduct after the offence and his conduct of the trial on a factual basis which has been found beyond reasonable doubt to be false is inconsistent with any remorse. No remorse, contrition or empathy in relation to the circumstances of the complainant has been demonstrated. There can be little doubt that he regrets his actions because of the consequences that his actions have imposed upon him and his family. Unfortunately, his desire to avert those consequences have prevented him from behaving in a manner which reflects real recognition of the harm that he has done, not to himself and his family, but to the victim of this serious assault.
Having regard to his good character and the significant consequences for him of the offending conduct, I do not consider that specific deterrence is as significant a consideration as it might be in a case like this. Because of the lack of any explanation for the attack it must remain a consideration, however, issues of general deterrence, the need to denounce the conduct and recognise the harm done to the victim and the community are the most significant sentencing considerations.
A community service order or intensive corrections order is not available because the offender resides in Melbourne. A fine of up to $10,000 is available under s 15 of the Crimes (Sentencing) Act 2005 (ACT). In the light of the limited sentencing options available, I consider that no sentence other than a sentence of imprisonment would be appropriate. I consider that a sentence of imprisonment of six months would adequately reflect the circumstances of this case. However, I consider that this may be served by way of a wholly suspended sentence combined with a good behaviour order of a significant length.
Orders
The orders of the Court are therefore:
1. The offender is convicted on the charge of intentionally or recklessly inflicting actual bodily harm.
2. He is sentenced to imprisonment for a period of six months.
3. That sentence is to be wholly suspended forthwith upon him entering into a good behaviour order for a period of 30 months.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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