R v Kalachoff (No 4)

[2019] ACTSC 257

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kalachoff (No 4)

Citation:

[2019] ACTSC 257

Hearing Date:

11 – 13 September 2019  

DecisionDate:

13 September 2019

Before:

Elkaim J

Decision:

See [13]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – Accused found Not Guilty by jury of Assault occasioning actual bodily harm – accused found Guilty of statutory alternative of common assault

Legislation Cited:

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

Crimes (Sentence Administration) Act 2005 (ACT)

Parties:

The Queen (Crown)

Brock Kalachoff (Offender)

Representation:

Counsel

P Dixon (Crown)

J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 225 of 2016; SCC 226 of 2016

ELKAIM J:

1. The offender’s trial began on 11 September 2019. He faced a charge of assault occasioning actual bodily harm with a statutory backup charge of common assault.

1. The jury today, 13 September 2019, returned a verdict of not guilty on the primary charge, but guilty of the common assault.

1. It is apparent from the jury’s decision, and confirmed by the questions asked by the jury during their deliberations, that the jury was satisfied beyond reasonable doubt that the offender had acted in self-defence for at least part of the fight between him and the complainant.

1. It is also apparent that the self-defence did not extend to the final punch, which can be seen in the CCTV footage. The jury was plainly not satisfied beyond reasonable doubt that the injuries that were suffered by the offender had not been inflicted as a result of one or more of the punches that had been thrown at a time when the offender was acting in self-defence.

1. The offender is therefore left to be sentenced for the common assault constituted by the final punch. This punch was entirely uncalled for and, as stated by the offender himself in his record of interview (for example at questions 349 and 444) was a step too far in the conflict that had erupted between him and the complainant. In my view this is a common assault of below medium objective severity.

1. I also note the offender’s reference in the record of interview to a one punch offence. The punch that is the subject of this crime had many of the ingredients of a one punch attack, except that, fortunately, there was no resulting severe injury.

1. The offender was born in 1996. He grew up in Canberra and has a supportive family. I noticed his parents and partner were present throughout the trial. He works as a concreter.  

1. The offender has a minor criminal record which does not impact upon his sentencing today. It does however deprive him of the extra leniency that might have attached to no criminal record at all.

1. Sentencing requires consideration of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 is also relevant. In regard to s 10 there is no suggestion that the offender should be placed in full-time imprisonment.

1. There is an important element of general deterrence in this matter. Young men who go to pubs and drink should be very aware of the harm that can be caused as a result of minor disagreements, even if stemming from chivalrous attempts to protect their perceived relationships with another person.

1. I also note that this is the third trial arising from the same incident. In the first case the jury was discharged when it was inadvertently provided with inadmissible material. In the second trial the jury was unable to reach a verdict. The stress of giving evidence on three occasions would have been significant to the complainant, as would have been the stress of facing trial on three separate occasions to the offender.

1. I do not know if the offender had ever offered to plead guilty to common assault. If the offer had ever been made, it would have been obvious to his previous legal advisers that this would have been appropriate.

1. I make the following orders:

(i)For the offence of common assault the offender is convicted and sentenced to imprisonment for one month to commence today and end on 12 October 2019.

(ii)The sentence of imprisonment is suspended with immediate effect on condition the offender enter into a good behaviour order for a period of nine 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 her delegate for 9 months or such shorter time as the Director-General decides.

(iii)Transfer charge CC16/3326 is dismissed.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim.

Associate:

Date: 13 September 2019

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Amendment

25 November 2019       Replace the Case Title (R v Kalachoff (No 3) with R v Kalachoff (No 4).