R v Johnson
[2018] ACTSC 128
•18 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnson |
Citation: | [2018] ACTSC 128 |
Hearing Date: | 18 April 2018 |
DecisionDate: | 18 April 2018 |
Before: | Murrell CJ |
Decision: | Sentenced to two year good behaviour order with community service condition involving 100 hours of community service. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – early guilty plea – strong subjective circumstances – good prospects of rehabilitation – history of alcohol abuse – history of physical and emotional abuse – offender on conditional liberty |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Crimes (Sentence Administration) Act 2005 (ACT) s 281 Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 |
Parties: | The Queen (Crown) Haylee Johnson (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr T Taylor (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 271 of 2016 |
MURRELL CJ:
The offender is to be sentenced for the offence that, on 1 November 2015, she assaulted Georgia Sirotka-Robertson occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).
The maximum penalty for an offence against s 24 is five years’ imprisonment.
On 17 November 2016, the offender was committed to the Supreme Court for trial on charges of recklessly inflicting grievous bodily harm and intentionally inflicting grievous bodily harm.
Approximately one month before she was committed for trial, the offender offered to plead guilty to assault occasioning actual bodily harm. This offer was rejected.
At the trial, the Crown left open to the jury the statutory alternatives of causing grievous bodily harm and inflicting actual bodily harm. The jury was unable to reach a verdict. The jury’s inability to reach a verdict, including a verdict on the alternative charges, indicates that the Crown case was not strong.
On 21 February 2018, the Crown filed a new indictment and the offender pleaded guilty to the charge of assault occasioning actual bodily harm. The Crown accepted the plea in full satisfaction of the indictment.
The offender should receive credit for the fact that she was prepared to plead guilty to the appropriate charge at a relatively early stage. Such a plea would have had significant utilitarian value. It shows an early willingness to facilitate the course of justice. She is entitled to a significant discount on the penalty that would otherwise be imposed. If I was imposing a sentence of full-time imprisonment, the discount would be 20 per cent. In this case, I will take the plea and the early offer to plead into account in relation to the nature of the sentence that I impose.
Facts
On Saturday, 31 October 2015, the complainant and her friends went to Canberra City.
The complainant and the offender were known to each other. Each had had a prior romantic involvement with the same woman. This situation had caused stress to one or both parties.
In the early hours of 1 November 2015, the complainant saw the offender running into oncoming traffic on London Circuit. The complainant attempted to restrain the offender. Both fell over. The offender hit her head on the concrete footpath. The complainant landed on the offender.
The complainant struck the offender. The women engaged in a physical altercation. One of the complainant’s friends broke up the altercation.
A short while later, the complainant heard someone make a disparaging comment about her. The complainant approached the offender and made a provocative comment. The offender then punched the complainant with a closed fist to her right eye. The complainant punched the offender twice in the face. The women struggled. They hit each other’s heads against the concrete. At one stage, the complainant dragged the offender for a distance of several metres. For a second time, they were separated by friends.
The complainant sat in the gutter. The offender stepped towards her and kicked her in the head twice. The complainant sustained bruising around her right eye and the area was tender for a period thereafter.
At the time of the incident, both parties were intoxicated. The offender told a reporting psychologist that, on the night of the incident, she had consumed a bottle of vodka because she was distressed.
Victim impact
The complainant provided a victim impact statement.
She experienced a soft tissue injury to the area around her right eye. For a period after the assault, she was also concerned about possible permanent damage to her eye.
The complainant has suffered significant psychological injury, including post-traumatic stress symptoms of nightmares and flashbacks, and feelings of depression. She believes that her relationships and capacity to trust people have been negatively impacted.
No doubt, the incident was frightening for the complainant. She suffered a significant psychological impact as a result of the offender’s conduct.
Objective seriousness
The offence is of significant seriousness. It involved not one but two kicks to the face, which is a vulnerable area. At the time of the incident, the complainant was seated. She was in no position to defend herself. The episode could have resulted in a much more serious injury and a much more serious charge.
On the other hand, the offence was immediately preceded by two fights in which both the complainant and offender participated.
Subjective circumstances
At the time of the offence, the offender was 21 years old. She is now 23 years old.
The offender lives with a partner who is supportive. Recently, she had a miscarriage.
The offender has no adult criminal convictions. She has had limited prior interaction with the criminal justice system. In 2015, the offender received a two year good behaviour order (but was not convicted) for an offence of assault occasioning actual bodily harm that was committed in NSW in November 2014. The good behaviour order was imposed on 11 February 2015. Consequently, the subject offence was committed while the offender was on conditional liberty for a similar matter.
The NSW s 10 order has been supervised by ACT Community Corrections. In May 2015, the supervision component was terminated early because of the offender’s positive engagement and participation in a mental health treatment regime.
The offender is the oldest of four children. She had an abusive and chaotic upbringing because of her father’s mental health problems and alcoholism. She was subjected to serious emotional and physical abuse. The offender told the reporting psychologist that she was terrified of her father and that, while she was living with him, she was chronically fearful. The offender’s account is supported by a letter authored by the offender’s mother.
One of the offender’s siblings is disabled and required intensive parenting by the offender’s mother. This left the offender to supervise the other children.
In 2014, the offender’s parents separated. The offender has no ongoing contact with her father.
All in all, the offender’s childhood and adolescence were very difficult and destined to cause problems.
The offender completed Year 10 but experienced difficulties at school. Thereafter, she undertook most of a four year hairdressing apprenticeship. She failed to complete the apprenticeship because of the family breakdown. She would like to complete her studies. For the past few years, she has worked in the retail industry. Referees attest to her strong work ethic.
The offender has a long history of alcohol abuse dating back to when she was about 14 years old. She has used alcohol to manage distress associated with childhood abuse. A drug and alcohol assessment that was undertaken in March 2018 revealed that, over the preceding 12 months, the offender’s alcohol use was at high risk and required immediate intervention.
The offender has acknowledged a history of self-medicating with alcohol. After the offence, the offender reduced her alcohol use. Since December 2017, she has consumed no alcohol. She no longer has a desire to use alcohol as a coping strategy. Her commitment to remaining sober has been reinforced by observing her brother, who is attempting to deal with alcoholism.
According to the reporting psychologist, at the time of the incident, the offender was suffering from symptoms consistent with Major Depressive Disorder (severe), Post-traumatic Stress Disorder and Alcohol Use Disorder. Her depressive symptoms had begun in early 2014. The post-traumatic stress symptoms began following a sexual assault in March 2015.
Reportedly, in March 2015, the offender was sexually assaulted in Civic. The assault occurred at a location that was quite close to the location of the subject incident. The night of 31 October 2015 was the first occasion on which the offender had returned to the scene. Consequently, on the night of the subject incident, she was agitated.
When interviewed by Community Corrections and by the reporting psychologist, the offender expressed remorse and acknowledged the impact of her actions on the complainant. She was willing to engage in a restorative justice process. The reporting psychologist said that the offender expressed good insight into the role of her trauma history, mental health and alcohol use in her offending. According to the psychologist, the offender identified the incident as a “wake-up call”.
The offender has been assessed as at medium–low level risk of reoffending. The primary areas of criminogenic risk are alcohol abuse and unaddressed mental health and emotional needs. The psychologist agreed that the offender’s primary risk factors could be addressed with appropriate treatment and support.
Sentencing purposes
General deterrence and the need to protect the community from violent conduct are important sentencing purposes. Unfortunately, this is an example of a violent offence committed in a public place by a young person who is under the influence of alcohol. Such conduct calls for a strong message of general deterrence and punishment adequate to reflect the seriousness of the offence.
Personal deterrence is also an important sentencing consideration in this matter, bearing in mind that the offence was committed while the offender was on a good behaviour order for a similar offence.
However, given the offender’s youth and demonstrated commitment to rehabilitation, rehabilitation is also a dominant sentencing purpose.
The prosecution submitted that a sentence of imprisonment is the only appropriate penalty.
I do not accept that submission. The offence itself was of significant objective seriousness. However, offences of assault occasioning actual bodily harm are far from the most serious in the criminal calendar. The maximum penalty of five years’ imprisonment is, relatively speaking, not high. Further, the offender advanced very strong subjective circumstances. She has demonstrated a commitment to, and capacity for, rehabilitation.
Having regard to the relevant sentencing purposes, I consider that imprisonment is not the only appropriate penalty. On the other hand, on its own, a good behaviour order is inadequate to reflect sentencing purposes such as general deterrence, adequate punishment, accountability and denunciation. Consequently, I will impose a community service condition on the good behaviour order.
Breach of NSW good behaviour order
I am also asked to deal with a breach of the good behaviour order imposed in NSW. Pursuant to s 281 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), I am empowered to do so.
There is no information before the Court suggesting that the offender has come to the attention of the criminal justice system since the commission of this offence two and a half years ago. I take that matter into account.
Sentence
The offender is convicted and sentenced.
I impose a good behaviour order requiring the offender to sign an undertaking to comply with good behaviour obligations under the Sentence Administration Act for a period of two years.
The good behaviour order is to include a condition to accept the supervision of Community Corrections for a period of at least six months. Thereafter, the supervision condition may be terminated when Community Corrections considers it appropriate to do so. Further, I impose a community service condition requiring the offender to undertake 100 hours of community service work within 12 months. The offender is to report to Community Corrections at the Magistrates Court by 4.00pm today.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: 16 May 2018 |
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