R v Johnson

[2019] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Johnson

Citation:

[2019] ACTSC 179

Hearing Date:

16 July 2019

DecisionDate:

16 July 2019

Before:

Elkaim J

Decision:

See [22]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – jury trial – re-trial – primary offence of recklessly inflict grievous bodily harm – offender found not guilty of primary offence but guilty of statutory alternative offence of inflict actual bodily harm

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – inflict actual bodily harm – consideration of harm suffered by the victim – broken jaw – whether or not injury suffered was grievous bodily harm

Legislation Cited:

Crimes Act 1900 (ACT) ss 23, 49

Crimes (Sentencing) Act 2005 (ACT) ss 33(1), 6, 7, 10

Cases Cited:

R v Barbaro (Unreported, Supreme Court of the Australian Capital Territory, Justice Penfold, 17 June 2010)

R v Forsyth [2015] ACTSC 326

R v Howell [2018] ACTSC 155

R v Manevski (No 2) [2016] NSWSC 1465

R v Sharma [2016] ACTSC 180

Parties:

The Queen (Crown)

Carl Johnson (Offender)

Representation:

Counsel

S Naidu (Crown)

J Ong (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 332 of 2017

ELKAIM J:

1. The offender was found guilty by a jury, on 28 March 2019, of the offence of inflicting actual bodily harm to a Mr Anthony Soldo during an incident on 6 July 2014. This is an offence contrary to s 23 of the Crimes Act 1900 (ACT) (Crimes Act), and carries a maximum penalty of 5 years’ imprisonment. The offence was the second statutory alternative offence, as outlined in s 49 of the Crimes Act, to the primary count in the indictment, namely that he had recklessly inflicted grievous bodily harm on the complainant. The first alternative was that he had caused grievous bodily harm to the complainant.

1. The complainant had been struck twice by the offender. The first strike occurred inside the Academy nightclub. The second strike was on the footpath outside the club. Following the strike outside the club the victim was rendered unconscious and taken to hospital where it was discovered that he had a fractured jaw.

1. The Crown case was that the fractured jaw had been inflicted by the strike outside the club. The defence said that, primarily based on the evidence of an expert, the jury could not be satisfied beyond reasonable doubt that the fractured jaw was a product of the first strike.

1. The defence however also advanced a case that said that even if the fractured jaw had been sustained in the second strike it did not amount to grievous bodily harm.

1. The result is that the jury verdict could contemplate either that the jury was not satisfied beyond reasonable doubt that the second strike had caused the fractured jaw or that the second strike did cause the fractured jaw but the jury was not satisfied that the injury amounted to grievous bodily harm.

1. In the course of discussion with Counsel during the trial, but in the absence of the jury, I observed that the suggestion that the fractured jaw, having regard to its effects, namely requiring surgery and the insertion of a plate and pins which will be present for the whole of the complainant’s life, could not amount to grievous bodily harm was essentially untenable.

1. The point is of significance to the sentencing process because a relevant consideration is the harm done to the victim (Section 33(1)(e), Crimes (Sentencing) Act 2005 (ACT)). More particularly to this case, was it the infliction of a broken jaw with permanent consequences, or was it no more than a strike which rendered the victim unconscious for a few minutes but otherwise had no lasting effect.

1. Because of my view that the fractured jaw, including its permanent effects, is obviously an injury amounting to grievous bodily harm I think it appropriate, and that I really have no other reasonable choice, but to sentence the offender on the basis that the fractured jaw occurred inside the club and is not a product of his offending. I do not think the Crown disputes this conclusion.

1. It is a consequence of the above finding that the objective seriousness of the offence will be less than it would have been had it involved the serious jaw injury suffered by the victim. This is not to say that being rendered unconscious is not significant but there is no evidence of any ongoing incapacity flowing from the loss of consciousness. Consequently I think the objective seriousness of the offence should be categorised as below medium.

1. This categorisation takes into account the matters I outlined concerning one punch attacks in R v Sharma [2016] ACTSC 180. It is especially necessary to bear in mind the need for general deterrence so that young people know that getting drunk is no excuse for illegal acts that they go on to commit.

1. The offender was born in 1994. Unfortunately he did not attend for the preparation of a pre-sentence report so that a number of subjective factors are missing. However he did give evidence in the trial and some facts can be gleaned from that evidence.

1. He is a man of Aboriginal heritage who grew up in the Condobolin area. He was, as a child, a very good rugby league player and came to Canberra when he was 12 years of age to encourage his participation in the sport. He came to live with a former NRL player. He initially went to Chisholm High School and then on to Melrose High School. He played rugby league for the Valley Dragons and then joined the Canberra Raiders Junior squad where he remained up to the under 20s level. He left the Raiders at the end of 2016.

1. When the offence occurred the offender was playing rugby league for the Tuggeranong Bushrangers in a first-grade competition. He was working as the administration manager at an Indigenous business. By the time of the hearing he was working as a delivery driver and is still doing so. There is a reference from his employer which states that the offender “has recently become a father for the first time and this seems to have had a positive influence on his work ethic and his outlook on life as he is now providing for his family”. (Exhibit 1).

1. The offender has a criminal record in both the ACT and New South Wales. It is not extensive but does deprive the offender of the leniency available to a person of previous good character.

1. I was referred to an earlier trial in this matter which took place in September 2018. The offender faced the same charge. The jury could not agree and was discharged.

1. On the second day of the first trial his counsel said this to the presiding judge:

Your Honour, we’ve indicated to the Crown that my client has instructed us to offer a plea to assault occasioning actual bodily harm and a reckless assault occasioning on the basis of excessive self-defence. That is, knocking the complainant unconscious on the outside of the nightclub. That’s on the basis that the Crown could not possibly exclude the injury to the jaw having occurred downstairs. I understand my learned friend wants to continue with the evidence rather than take instructions on the resolution. (This quote has been checked for accuracy)

1. The Crown did not accept the offer. The scenario outlined by counsel accords with the result obtained in this trial. A possible consequence is that the accused should be entitled to a discount on any sentence of imprisonment. My initial impression was that this discount should be 25%.

1. The Crown however pointed out the New South Wales case of R v Manevski (No 2) [2016] NSWSC 1465, from [27]. I was also referred to the amended case statement in which the Crown’s allegation in respect of the alternative charge was limited to the victim being knocked unconscious outside the club. I was reminded that the trial before me was run on the basis of self-defence and no approach had been made by the offender to plead to the lesser charge. By the same token I note that the Crown never approached the offender to enquire whether he would again enter the plea that he had previously offered but was rejected by the Crown.

1. In my view the consequence is that the accused should still be entitled to a discount on his sentence, but not to the extent that I had previously envisaged. I think it should be about 10%.

1. Besides s 33, it is also necessary to have regard to ss 6 and 7 of the above Act and especially s 10. Section 10 says a person should not be sent to prison except as a last resort. The offender conceded that the s 10 threshold had been passed but suggested that, having regard to a number of comparable cases (including R v Howell [2018] ACTSC 155, R v Barbaro (Unreported, Supreme Court of the Australian Capital Territory, Justice Penfold, 17 June 2010); R v Forsyth [2015] ACTSC 326), that the term of imprisonment should not necessarily be by way of full-time custody. I did not understand the Crown to argue otherwise.

1. The offender has spent one day in custody in relation to this matter which I think I can effectively ignore. I think the appropriate term of imprisonment for this offence is nine months which I reduce to 8 months to reflect the discount. However having regard to the subjective factors in this matter and in particular the very good prospects of rehabilitation I intend to suspend the sentence with immediate effect, on condition the offender enter into a good behaviour order for a period of 12 months.

1. I make the following orders:

(a)In relation to the offence of inflict actual bodily harm (second alternative to CC2014/11750) the offender is sentenced to imprisonment for eight months commencing today and ending on 15 March 2020.

(b)The above sentence of imprisonment is suspended with immediate effect on condition the offender enter into a Good Behaviour Order for a period of 12 months and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or their delegate for 12 months or such shorter time as the Director-General decides. The Good Behaviour Order is subject to the following additional condition that the offender engage in such programs as the Director-General decides in respect of alcohol abuse.

I certify that the preceding Twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 16 July 2019