R v kN

[2018] ACTSC 111

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KN

Citation:

[2018] ACTSC 111

Hearing Date:

26 February 2018

DecisionDate:

26 February 2018

Before:

Burns J

Decision:

See [18]-[21]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault occasioning actual bodily harm – intentionally and unlawfully choking a person so as to render that person insensible or unconscious – no previous history in relation to violence – drug and alcohol abuse problems – childhood trauma – little likelihood of offences recurring – very good prospects for rehabilitation

Legislation Cited:

Crimes Act 1900 (ACT) s 27

Cases Cited:

R v Watson [2014] ACTSC 395

Parties:

The Queen (Crown)

KN (Offender)

Representation:

Counsel

Mr J Hiscox (Crown)

Ms L Taylor (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

ACT Legal Aid (Offender)

File Number:

SCC 58 of 2017

Burns J:

1. KN pleaded guilty to one offence of assault occasioning actual bodily harm and one offence of intentionally and unlawfully choking a person so as to render that person insensible or unconscious. A comprehensive Statement of Facts has been tendered. I will not recite the Statement of Facts in full. It is sufficient to observe that the offender head-butted his wife, causing her to become unconscious for a brief period of time. Shortly thereafter, he tightly wrapped a piece of rope around her neck such that she again became unconscious and passed out. She subsequently regained consciousness, finding herself in a different location. She was then able to remove the rope from her neck. However, whilst she had been unconscious, she lost control of her bodily functions and had urinated.

1. I note that the maximum penalty for the offence of assault occasioning actual bodily harm is five years imprisonment and the maximum penalty for the offence of intentionally unlawfully choking a person so as to render them unconscious is 10 years imprisonment. I note that the Statement of Facts refers to it as an act endangering life, as this is how it is described in s 27(3)(a) of the Crimes Act 1900 (ACT).

1. These offences occurred on 5 November 2013. I understand that after the offending occurred, the offender and the victim, who had been in a relationship for some time, resumed their relationship. That relationship ultimately broke down and the offender’s former partner, the complainant in this matter, obtained a Domestic Violence Order against him. I am unaware of the circumstances which led to the granting of the Orders in the Magistrates Court; however, on 8 July 2015, the offender was convicted of two offences of contravening orders made under the domestic violence legislation and he was placed on Good Behaviour Orders for a period of time.

1. It appears that the complainant, in October 2015, then provided a statement to police in relation to the present charges. She had been unwilling to provide such a statement previously because, as I understand it, of her desire to continue in her relationship with the offender. After the complainant provided a statement to the police in October 2015, a period of 12 months elapsed before the investigating police swore information before a magistrate and a summons was issued. As I understand it, the offender first came before the Magistrates Court on 7 February 2017, at that time charged with four charges which included the two charges to which he has now pleaded guilty.

1. KN was committed for trial to this Court with respect to the four charges on 7 March 2017. On 14 August 2017, the matter was listed for trial to commence on 27 November 2017. Following negotiations between the offender, his legal representatives and the Office of Director of Public Prosecutions, he entered pleas of guilty to the charges which are now before the Court in full satisfaction of the presented indictment. Defence counsel has accepted that the present pleas were not early pleas and I think that that is an inevitable conclusion. However, I accept from the material which has been put before me that the offender has very little recollection of the events of the evening in question, and it is not uncommon for people in those circumstances to have doubts as to whether they would have acted in the way in which it is alleged they did act.

1. That is particularly so where, as here, the offender has no previous history in relation to violence. Although the plea was a late plea, I accept that it demonstrates remorse on his part and I, of course, accept that it had significant utilitarian value, although not the same degree of utilitarian value as if it had been an early plea of guilty. I will reduce the sentences which I would otherwise have imposed in order to reflect his pleas of guilty, and when I come to impose sentence, I will indicate the extent to which I have reduced the sentences that I would otherwise have imposed.

1. I note that the offender has a criminal history, although as I have already indicated, it is not a history which includes offences of violence. There is one possible exception to that, offences of resisting police in 1987, but I note that that was dealt with by way of a fine and it appears to me unlikely that any significant violence was involved in those offences. I will proceed on that basis.

1. I take into account the contents of both the Pre-Sentence Report and the Court Alcohol and Drug Assessment Service (CADAS) Report which is before me. As I indicated in argument with Ms Taylor who appears as defence counsel, two things, from my perspective, emerge from the Pre-Sentence Report, and that is that the offender has a long-standing issue in relation to the abuse of alcohol, and secondly, he also has not insignificant mental health issues that need to be addressed.

1. It is quite likely that both of those issues are connected and arise out of the trauma which the offender suffered as a child and which is referred to in both the Pre-Sentence Report and to a greater extent in the CADAS Report. It was the opinion of the author of the Pre‑Sentence Report that the offender is a 60 year old man with a history of ongoing problematic alcohol consumption, childhood trauma, and significant mental health issues. The author of the Report noted that he has maintained the support of his family throughout his life and as a result he maintained a conventional lifestyle complete with a fulfilling career, stable accommodation, a strong network of supportive companions, and, for the most part, two lengthy, happy relationships.

1. The Pre-Sentence Report notes that the offender is actively engaged with appropriate counselling services to address his childhood trauma. He is assessed as being at medium to low risk of general re-offending, with his primary area of risk being his mental health, alcohol consumption and financial situation. The Report notes that he has proactively engaged with relevant psychological supports, that he maintains adequate and supportive employment, he has stable accommodation, and he has strong support of his pro-social family whilst in the community. The author of the Report noted that if the offender is able to demonstrate successful engagement with continued mental health treatment, alcohol-related counselling or programs and financial-related interventions, it was anticipated that his level of risk of re-offending may be reduced.

1. Turning to the CADAS Report, I note that the author of that Report notes that the offender has commenced counselling with Ms Carmel McBride on 10 January 2018 and had attended a total of five appointments at the time the Report was written. A good therapeutic alliance has developed and Ms McBride has been providing positive progress reports to CADAS. The author of the CADAS Report noted that Ms McBride has considerable experience in alcohol and other drug treatment, trauma and sexual abuse fields, which are likely to be of benefit to him. KN also reported a reduction in his alcohol use and it is noted that the use of crisis support services has not been required in recent times in comparison to earlier times when they were used with a degree of frequency.

Consideration

1. It is fair to say, as the prosecution submitted, that the objective circumstances of these offences reveal serious offending which calls for terms of imprisonment. Defence counsel has, quite correctly, in my view, accepted that that is the case.

1. The question is, how are any such sentences to be served. The prosecution provided me with the case of R v Watson [2014] ACTSC 395 (R v Watson), which also involved a case of choking which rendered the victim unconscious, and, again, caused the victim to lose control of her bodily functions resulting in her defecating. In that case, Walmsley AJ would have imposed a sentence of four years and six months imprisonment, but he reduced that to one of four years imprisonment in order to reflect the plea of guilty in the matter.

1. I note, with respect to that matter, that the offender was younger than the offender in this case and had a more significant history. The offence in R v Watson involved the offender following the victim when she had left his premises and then assaulting her in a unit where she had sought refuge. In addition, it is not an insignificant factor that the victim in that case was pregnant at the time. There was no issue of delay, as I read it, that needed to be addressed in that case. The prosecution has correctly conceded that in the present case, I need to take into account the delay that has occurred between the occurrence of these offences and the offender appearing before me today for sentence.

1. As I have already noted, these offences occurred on 5 November 2013, so nearly four and a half years ago now. There is no suggestion that KN has committed any similar offences since that time, although of course he did commit the offences of contravening the protection orders that were dealt with in 2015. However, as I have said, I don't have the details of those before me, and, as such, I am not in a position to make any finding that such offences involved the use of violence. Indeed, I would have expected the Crown to have put that information before me had they involved offences or the use of violence.

1. I am satisfied that the offender has taken steps to rehabilitate himself over the period of time since the commission of these offences and, in particular in more recent times, that he is now undertaking appropriate counselling in order to try to address both mental health and alcohol abuse issues. I am satisfied that there is little likelihood of these offences recurring. In my opinion, he has very good prospects for rehabilitation.

1. A sentence of full-time imprisonment is a sentence of last resort such that it is not to be imposed if any lesser sentence would be adequate to address the requirements of sentencing. I accept that general deterrence has a role to play for sentencing with respect to these offences, but bearing in mind all of the factors to which I have referred, in my opinion the requirements of sentencing may be addressed appropriately by suspended sentences.

Sentence

[Speaking directly to the offender]

1. With respect to the charge of choking another person so as to render that person insensible or unconscious (CC17/2176), I record a conviction and sentence you to two years and seven months imprisonment, which I have reduced from three years in order to reflect your plea of guilty. That sentence of two years and seven months imprisonment will commence today, 26 February 2018, and it will expire on 25 September 2020.

1. With respect to the offence of assault occasioning actual bodily harm (CC16/9700), I record a conviction and sentence you to 12 months imprisonment. I have reduced that from 15 months in order to reflect your plea of guilty. That sentence will commence on 26 November 2019 and expire on 25 November 2020.

1. The aggregate sentence which I have imposed is one of imprisonment for two years and nine months, commencing on 26 February 2018 and expiring on 25 November 2020. Those sentences will be suspended forthwith.

1. There will be a Good Behaviour Order for a period of three years from today with a condition that you are to accept the supervision of ACT Corrective Services for that period of three years or such lesser period as deemed appropriate by your supervising officer. Secondly, you are to undertake such counselling or treatment as directed by ACT Corrective Services, particularly with regard to alcohol abuse and mental health issues. In that regard, I recommend that you be directed to continue with your counselling with Carmel McBride.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 15 May 2018