R v Kinsela
[2021] ACTSC 265
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kinsela |
Citation: | [2021] ACTSC 265 |
Hearing Date: | 13 October 2021 |
DecisionDate: | 13 October 2021 |
ReasonsDate: | 15 October 2021 |
Before: | Murrell CJ |
Decision: | 34 months’ imprisonment, suspended after 16 months’ imprisonment with a two-year good behaviour order |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – theft – possess a prohibited substance – possess more than 50 grams of dried cannabis – where offender experienced dysfunctional upbringing – where prospects of re-offending are low – where increased hardship associated with incarceration during COVID-19 pandemic |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35 Crimes Act 1900 (ACT) s 20 Drugs of Dependence Act 1989 (ACT) ss 171, 171AA |
Cases Cited: | R v Bandy [2018] ACTSC 261 R v Hallam [2021] ACTSC 141 Worboyes v The Queen [2021] VSCA 169 |
Parties: | The Queen (Crown) Jamie Stewart Kinsela (Offender) |
Representation: | Counsel S Janackovic (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Andrew Byrnes Law Group (Offender) | |
File Numbers: | SCC 283 of 2020, 158 of 2021 |
MURRELL CJ:
Introduction
The offender is to be sentenced for two offences that were committed on 4 September 2020:
(a)Count 1: Recklessly inflict grievous bodily harm (by way of joint commission), contrary to s 20(1) of the Crimes Act 1900 (ACT).
The maximum penalty is 13 years’ imprisonment.
(b)Count 2: Theft, contrary to s 308 of the Criminal Code 2002 (ACT).
The maximum penalty is a fine of $160,000, 10 years’ imprisonment, or both.
He is to be sentenced for two transferred offences that were committed between 28 August and 6 September 2020:
(a)Count 3: Possess prohibited substance, namely tetrahydrocannabinol (THC), contrary to s 171(1) of the Drugs of Dependence Act 1989 (ACT).
The maximum penalty is a fine of $8,000, two years’ imprisonment, or both.
(b)Count 4: Possess more than 50 grams of dried cannabis, contrary to s 171AA(2) of the Drugs of Dependence Act 1989 (ACT).
The maximum penalty is a fine of $8,000, two years’ imprisonment, or both.
The offender pleaded guilty to Counts 1 and 2 several months after a criminal case conference and several weeks before the trial was scheduled to commence. For some months, the parties engaged in discussions concerning the agreed facts. The prosecution case was strong. The appropriate discount under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act) is up to 15 per cent.
The offender undertook to participate in a record of interview with police regarding the possible whereabouts of the co-offender and the events surrounding the commission of the offence, and to give evidence at any trial without the need for a subpoena. As it is not known whether and when the co-offender may be located or the evidence that the offender may give, the value of the promised assistance to authorities is somewhat speculative. However, having regard to the undertaking, I will allow a total discount of 20 per cent.
Following negotiations concerning earlier charges of trafficking in drugs, on 15 June 2021 the offender pleaded guilty to Counts 3 and 4 when these lesser charges were first offered. I take this consideration into account in relation to the nature of the sentence imposed.
The offender has been in custody since his arrest on 5 September 2020.
Facts
In 2008, the victim and the offender had met through mutual friends. In mid-2020, the offender offered accommodation to the victim as a favour because he perceived that the victim was in difficult circumstances.
The victim moved into the offender’s home in Spence, and lived with the offender, the offender’s partner and 16-year-old daughter, and the offender’s friend (the co-offender).
Eventually, the victim was asked to leave because of concerns about his behaviour. In July–August 2020, the victim moved to a rented room in Latham. The offender provided a rental reference to the victim’s landlord.
29 August 2020–early September (Counts 3 and 4)
On about 29 August 2020 at about 1AM or 2AM, the victim broke into the offender’s residence and stole approximately 280 grams of cannabis and 1 litre of cannabis-infused vegetable glycerine (containing THC) (part of Counts 3 and 4).
After examining CCTV footage from cameras located at the offender’s residence, the offender and co-offender became aware of the victim’s involvement. The offender was incensed both by the fact that the victim had stolen cannabis and because the victim had entered the premises when his daughter had been present and asleep.
The offender and the co-offender sent several threatening Facebook and text messages to the victim.
On 1 September 2020, the offender called the victim’s landlord and stated that the victim was a dangerous man, who had broken into the offender’s home and stolen $5,000.
On or about 3 September 2020, the offender and the co-offender attended the Latham residence where the victim was residing. The co-offender spoke to the victim’s landlord while the offender remained in the car. The landlord suggested that the offenders speak to the police, but they responded that they would deal with it in their own way.
The offender and co-offender remained parked outside the Latham residence for some hours waiting for the victim.
The landlord told the victim that he must leave the Latham residence. The victim packed, left, and set up a swag to sleep in near the oval adjacent to the Latham Shopping Hub.
4 September 2020 (Counts 1 and 2)
On the morning of 4 September 2020, the victim was at the oval when the co-offender arrived, driving his utility vehicle. The offender was in the passenger seat. The offender jumped out. The victim began to run towards the Latham shops. The offender chased him on foot. The co-offender drove to the shops.
At 9:20AM, the victim arrived at the Latham shops. The co-offender pulled up and began to run after the victim. The victim ran into a food bar and asked the shop owner to call the police.
Seconds later, the co-offender ran into the food bar. He struck the victim in the face, knocked him to the ground and began to drag the victim by his left foot along the ground towards the front door of the shop. When the victim resisted, the co-offender kicked him in the ribs, stomped on his upper chest and head area, punched the victim’s upper shoulder and head area with his right hand and stomped on the victim’s leg.
The shop owner told the co-offender and victim to leave, and she herself left the shop. The co-offender removed the victim’s shoes and left the shop. The victim crawled behind the counter. The co-offender briefly re-entered the store before leaving again.
Outside the food bar, the storeowner saw the offender approach and she asked him to call the police. The offender refused. He told the storeowner that the victim had entered his house while his 16-year-old daughter had been asleep and had stolen $5,000. The storeowner told the offender to remove the victim from her shop.
At 9:22AM, the offender and co-offender re-entered the shop and went behind the counter. The offender kicked the victim while he was on the ground, then grabbed the victim and dragged him by his shirt and hair to a cement ramp outside the shop. The victim resisted and pleaded with the offender not to harm him.
The offender held the victim down on the ground by his shirt and the back of the neck. The offender struck the back of the victim’s head with his fist while continuing to hold the victim by the shirt. When the victim’s smartphone fell from his pocket onto the ground, the offender seized the phone and placed it in his pocket (Count 2).
While the offender held the victim by the shirt, the co-offender slapped the victim’s head, stomped on the victim’s right ankle five times in quick succession, and kicked the victim directly in the face. The victim recoiled in pain.
During the assault, the offenders yelled that the victim had robbed them, asked the victim about the location of his wallet, and threatened him.
A nearby resident witnessed the incident and called the police. As the assault continued, she gave the police a real-time account of her observations. She became increasingly terrified by the incident that she was observing.
At 9:24AM, the offender dragged the victim by his shirt towards the co-offender’s utility vehicle. He directed the victim to get into the back of the vehicle. The victim believed that he would be driven to a location where he would be harmed. He resisted. The offenders tried to push the victim head-first into the tray of the utility, but the victim continued to resist. The co-offender told the victim that he must not put blood on the vehicle, threatening that, “the more mess you make, the more we’re going to hurt you”.
The victim apologised to the offender and said that he would repay the money, but the offender replied that there was nothing that could be repaid anymore.
The offenders grabbed a rope from the back of the ute. The resident who was reporting the incident to police became very concerned. She left her house and screamed, “Stop, what are you doing! What are you doing! What is going on, I’ve got children here”. The offender told the resident that the victim had robbed him while he was asleep. The resident responded, “Guys, this is really scary for us”.
The offenders stopped what they were doing, and the victim escaped, bleeding heavily, and moved to where the resident was located. As the 000 operator told the witness, her intervention may have saved the victim’s life.
The offender yelled to the victim to “get out of Canberra”. The co-offender called to the resident, “He snuck into the house and stole $5,000 while we were sleeping with a young girl in the house”. The offender again screamed out that the victim should leave Canberra.
The offenders departed in the utility vehicle.
At about 9:30AM, police arrived at the scene and the victim informed them of the offender’s identity.
At about 9:35AM, ACT Ambulance Service arrived and began to transport the victim to Calvary Hospital. During the transportation, the victim’s lung collapsed. He was rushed to The Canberra Hospital in a critical condition. Upon arrival, he was triaged as a category 2 patient as he had a potentially life-threatening condition that required time-critical treatment.
The victim sustained a large right-sided pneumothorax (collapsed right lung), two rib fractures, a subpleural haematoma at the site of the rib fracture, pneumomediastinum and a fracture of the right medial malleolus (ankle) (Count 1). To treat the pneumothorax condition, the victim underwent a finger thoracostomy and the insertion of a chest drain. He received supplemental oxygen therapy, intravenous fluids, and a blood transfusion. The fractured right ankle was treated by way of an open reduction and internal fixation with screws. Additionally, the victim suffered subcutaneous emphysema, pneumomediastinum, subpleural haematoma, and various abrasions, bruises, and lacerations to his body.
The victim remained in the intensive care unit for four days. He was discharged wearing an orthopaedic boot on the right foot. He will have permanent scarring. There is the possibility of further pain, and recurrent pneumothorax.
CCTV footage from the food bar captured part of the assault.
On 5 September 2020, police executed a search warrant at the offender’s Spence residence, and arrested the offender. They located CCTV footage that depicted males of similar appearance to the offender and co-offender who were wearing clothing that was like that depicted in the CCTV footage taken at the scene of the assault.
During the search, police observed four cannabis plants lawfully growing in the backyard. They seized the following items (Counts 3 and 4):
(a)three plastic bags containing 585.9 grams of cannabis;
(b)a zip-lock bag containing 92.3 grams of cannabis;
(c)a large pink bag containing 6077 grams of cannabis;
(d)a glass jar holding a liquid substance containing 868.9 grams of THC; and
(e)a glass jar holding a liquid substance containing 339.5 grams of THC.
When questioned about the zip-lock bag containing cannabis, the offender said, “I grew it in my backyard and that’s all I’ve got left from last year”. The plastic bags and pink bag contained parts of cannabis plants that the offender said that he proposed to infuse in butter that he would eat.
Police have not located the co-offender.
Objective seriousness
The offence of recklessly inflicting grievous bodily harm was objectively serious, having regard to the following matters.
(a)The assault occurred in company, a feature adding to the terror of the victim.
(b)The assault was prolonged and multifaceted. It involved kicking and stomping on the victim, dragging him, and punching him. The offender and the co-offender each directly assaulted the victim. Although the co-offender committed a greater number of aggressive acts and was the first to assault the victim, the offender is responsible for the actions of the co-offender as well as his own actions.
(c)The offender was directly involved in the offence. He was involved in sending threatening messages. Both he and the co-offender loitered outside the victim’s Latham residence on the day before the offence. The offender attended the oval in the company of the co-offender. When the victim ran away, the offender chased him. The offender kicked the victim when he was on the ground, punched him in the head and held him to facilitate a further vicious assault by the co-offender. With the co-offender, he attempted to bundle the victim into the tray of the utility. At the conclusion of the incident, he repeatedly called out to the victim that he must leave Canberra.
(d)No weapon was used.
(e)The offence continued despite the victim’s obvious injuries and pleas by the victim and witnesses for the assailants to desist.
(f)Ultimately, the incident was terminated only because of the intervention of a witness.
(g)The offence involved the offender taking the law into his own hands. I do not accept the offender’s submission that the motive was to recover the cannabis that had been stolen or its financial value. There is no evidence that, at the time of the incident, there was any attempt to negotiate a return of the drug or payment of its monetary value. In fact, during the incident the offender told the victim that it was too late to speak of recompense.
(h)The offence was planned. It followed threatening messages and a vindictive statement made to the victim’s landlord. On the previous day, the offender and co-offender had parked outside the victim’s residence for some hours. They deliberately followed the victim from the oval to the shops when the victim sought to escape them.
(i)The grievous bodily harm that the victim sustained was serious and multifaceted, and threatened the victim’s life. But for the intervention of a witness, the offender could be facing a much more serious charge.
(j)I infer that the victim suffered severe pain for a period and that the attack resulted in significant psychological injury. Fortunately, there is no evidence of permanent physical consequences, other than scarring.
The theft was an impulsive offence and the item that was stolen was of limited value, although the theft would have been of significant inconvenience to the victim.
The drug offences involved large quantities of the substances. However, except for the bag containing 92 grams of cannabis, there is no evidence that the plant material was in usable form. The plant material had been sourced from cannabis plants that the offender had grown lawfully in his backyard. The offender used large quantities of cannabis to treat pain and manage his chronic anxiety and he had become addicted to cannabis.
Subjective features
The offender is 50 years old.
There are two significant matters on his criminal history. Having regard to their age, the matters would be insignificant except that they concern behaviour that was similar to that the subject of Count 1.
In 1989, the offender committed an offence of malicious wounding for which he received a three-month suspended sentence and a three-year good behaviour order. He had pursued and assaulted the victim for the stated purpose of “getting back” at the victim in the context of a dispute between the victim and the offender’s mother.
In 2001, the offender committed the offences of recklessly inflicting grievous bodily harm and harass/menace by telecommunication. He was sentenced, respectively, to nine months’ periodic detention and a suspended sentence order of six months’ imprisonment on a two-year good behaviour order. The offender had pursued and assaulted the victims and recorded threatening voicemail messages. The victim had required surgery for their injuries.
In 2020, the offender was found guilty of being a driver with a prescribed drug in his oral fluid or blood. No conviction was recorded, and on 16 July 2020 he was released on a six-month good behaviour order. The offences before the Court were committed during the currency of that order.
The offender is one of two children. He experienced a dysfunctional upbringing. After his father died when he was three years old, the offender was raised by his mother and a series of stepfathers who physically and emotionally abused the offender, his mother and brother. At 15 years of age, the offender left home to live in a share house with friends. He remained very close to his mother. She died in 2010.
The offender has been in a relationship for 25 years. The couple has daughters aged 23 and 17, who are students. The offender and his partner own their home, subject to a mortgage. His partner has secure employment. However, incarceration has placed substantial financial strain on the family. Fortunately, during the offender’s incarceration, his daughters have contributed to mortgage repayments and other outgoings.
After leaving school in Year 10, the offender worked as a plasterer. He sustained a work-related back injury in the mid-1990s and ceased manual work. He requalified and obtained work in telecommunication sales. In 2010, he started his own property maintenance company, and it became quite successful. However, due to health problems, he ceased that work. He established a business that provides drones for use by third parties. He is a highly qualified drone pilot. When he is released from custody, the offender intends to work as a salesman in a friend’s business. The friend confirmed the offer of work. The offender’s partner stated that the offender has a strong work ethic.
At 13 years of age, the offender commenced daily cannabis use as he found that it helped his nightmares. He continued to use substantial quantities of cannabis on a basis until he was remanded in custody. He told the author of the pre-sentence report that cannabis eased the physical pain from the workplace injury and helped him to sleep.
The offender stated that he grew cannabis plants to sustain his own habit. He had never considered his drug usage to be problematic. However, while in custody, he had remained abstinent. He would not resume cannabis use when released because “it causes too much trouble and I never want to be in trouble again”. His partner agreed that the offender’s cannabis use had been problematic and should be addressed.
On 29 July 2021, the offender completed a Directions ACT referral for one-on-one counselling. He completed the Alcohol and Drug Awareness Harm Prevention Training on 17 June 2021 and engaged well in all three two-hour sessions. In February 2021, he completed an anger management program.
The offender told the author of the pre-sentence report that he had been angry because the victim had stolen his cannabis supply. He had wanted to frighten the victim into returning the cannabis and had then “made a succession of bad decisions”.
The author of the pre-sentence report was concerned that the offender appeared to minimise his culpability, attributing the source of the problem to his own kind heartedness in offering accommodation and assistance to the victim. I agree.
The offender was assessed as a medium risk of general re-offending. Protective factors include his supportive family, stable accommodation, and substantial employment history.
I consider that the offender’s prospects of re-offending are low. It is true that he committed similar offences in the past. However, there was a 19-year gap between the 2001 offence and the current offence. The offender has now had the salutary experience of being imprisoned for the first time in his life. When he was first incarcerated, he became depressed and withdrawn. He has taken some steps towards addressing the issue of anger management. The offender has acknowledged to his partner that he has difficulty with anger management and needs to address the problem, as well as addressing the problems that make him anxious and have, in the past, caused him to resort to cannabis use to deal with the anxiety.
The offender has been in custody at a difficult time. Throughout the period of his imprisonment, the pandemic has meant that visits are somewhat restricted. According to his partner, over the past eight weeks the offender has been allowed out of his cell for only one hour a day. Contact has been via Internet calls. For the last six weeks there have been no AVL meetings, and the offender has had to rely on email communication. Because of the vulnerability of the prison population, it is likely that significant restrictions will apply to prison visits for some months.
The offender’s partner and other referees stated that the offender did not usually exhibit aggressive tendencies and the principal offence was out of character. The offender was described as a loving, caring, and supportive partner and father who provides a stable and secure environment for his family. He is a loyal and trustworthy friend.
The offender has expressed remorse to his family and friends.
Other sentencing considerations
The offender submitted that he should receive a higher than usual discount because, in the context of court delays caused by the pandemic, pleas of guilty had a greater utilitarian value than usual. In support of that submission, the offender relied on the decision of Worboyes v The Queen [2021] VSCA 169 at [35].
The position in Victoria is very different from that in this jurisdiction, where the pandemic has not resulted in significant delays in hearing matters. I do not accept the submission that, in the context of the pandemic, the offender’s pleas of guilty have additional utilitarian value.
In relation to the offence of recklessly inflicting grievous bodily harm, the prosecution referred the Court to the somewhat comparable cases of R v Torbet [2015] ACTSC 331 (Torbet) and R v Hallam [2021] ACTSC 141 (Hallam).
In Torbet, the offender harboured a sense of grievance against the victim, whom he believed had stolen property. He encountered the victim at a time when he had a machete in his possession. He used the weapon to strike the victim, causing significant injuries. The most serious injury was a severing of the Achilles tendon. The offender was 36 years old. Had a long history of substance abuse and suffered from paranoid schizophrenia. The sentencing judge was satisfied that the offender’s mental illness lessened his moral culpability. The offender had a substantial record, but for relatively minor matters. He was sentenced to five years and three months’ imprisonment (reduced from seven years for the plea of guilty).
In Hallam, the offender approached the victim because he believed that the victim had assaulted his girlfriend. He discharged a shotgun, wounding the victim in the chest and causing other injuries. The offender was 33 years old and had no record for violence as an adult. He was sentenced to four years’ imprisonment (reduced from five years for the plea of guilty) and received concurrent sentences for firearms offences.
The defence referred to the decision in R v Bandy [2018] ACTSC 261 (Bandy) in which the offender received a sentence of imprisonment of 30 months to be served by way of intensive corrections order with a community service condition. Bandy and many of the cases referred to therein are of limited assistance in the present case as they involved “one punch” attacks, often committed impulsively by a young and intoxicated offender.
The limitations of sentencing statistics are well-known. However, I note that the ACT Sentencing Database indicates that, of 10 offenders sentenced for offences of recklessly inflict grievous bodily harm between July 2012 and November 2020, five received a sentence of full-time imprisonment. The sentences ranged from 18 months to five years’ imprisonment.
In relation to Count 1, general deterrence is a prominent sentencing purpose. The offence involved a prolonged violent attack in a public place for the purpose of retribution. It was not an impulsive offence. The fact that the offenders had decided to take the law into their own hands speaks to the sentencing purposes of general deterrence and denunciation. Having regard to the offender’s prior record for similar incidents, personal deterrence and protection of the community are also important sentencing purposes.
Despite his questionable attitude to the offence, the offender’s age, stable personal circumstances, and limited criminal history suggest that there are good prospects for rehabilitation. The offender’s first period of incarceration has had a significant effect on him.
In relation to the principal offence, no sentence other than a sentence of full-time imprisonment is appropriate to reflect the gravity of the offence and achieve relevant sentencing purposes.
Ordinarily, because of the offender’s prospects of rehabilitation and the fact that this is his first period of incarceration, I would impose a nonparole period that was 50 per cent of the sentence. However, I will reduce the period of mandatory imprisonment by one month to recognise of the hardships of incarceration in the pandemic. As I envisage that the offender will be released in January, it is unlikely that his circumstances will change. Consequently, there is little to be gained by vesting a discretion in the parole authority and I will proceed by way of a partly suspended sentence.
Sentence
I convict the offender and impose the following sentences:
(a)Count 1: Recklessly inflict grievous bodily harm (by way of joint commission)—34 months’ imprisonment (reduced from three years and six months’ imprisonment), from 5 September 2020 to 4 July 2023. Pursuant to s 12 of the Sentencing Act, I make an order suspending the sentence of imprisonment from 4 January 2022 and I make an associated s 12 good behaviour order requiring the offender to be of good behaviour for 2 years from 4 January 2022. The good behaviour order is subject to the conditions that the offender report to Community Corrections within two working days of release and accept their supervision (including in relation to substance abuse programs) for as long as they consider necessary (not exceeding the term of the order).
(b)Counts 2 (theft), 3 (possess prohibited substance) and 4 (possess more than 50 grams of dried cannabis)—in each case, pursuant to s 12 of the Sentencing Act, I impose a good behaviour order for a period of 2 years from 4 January 2022 on the same terms as apply to Count 1.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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