R v Krutsky; R v Weldon

[2017] ACTSC 359

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Krutsky; R v Weldon

Citation:

[2017] ACTSC 359

Hearing Date:

30 November 2017

DecisionDate:

30 November 2017

Before:

Elkaim J

Decision:

See [29] - [30]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm.

Legislation Cited:

Crimes Act 1900 (ACT) s 20

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

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

R v Newman; R v Reid [2016] ACTSC 102

R v Zdravkovic [2017] ACTSC 70

Parties:

The Queen (Crown)

Rebecca Katherine Krutsky (Offender)

Douglas James Weldon (Offender)

Representation:

Counsel

Mr D Sahu Khan (Crown)

Ms B Morrisroe (Offender – Krutsky)

Mr J Sabharwal (Offender – Weldon) 

Solicitors

Office of the ACT Director of Public Prosecutions (Crown)

ACT Legal Aid (Offender – Krutsky)

Sharman Robertson Solicitors (Offender – Weldon)

File Numbers:

SCC 171 of 2017; SCC 172 of 2017; SCC 134 of 2017; SCC 326 of 2017

ELKAIM J:

1. The two offenders were due to stand trial before a jury on 29 November 2017. They were facing two counts in an indictment dated 5 July 2017. Immediately before the proceedings were due to begin, I was informed that the offenders would enter a plea of guilty to the second count in the indictment. Their pleas were accepted in full satisfaction of the indictment.

1. The trial was set to run for two to three days. The pleas of guilty do have some utilitarian value, but it is limited. A jury panel had been assembled and the matter was ready to proceed. I think the offenders are entitled to some discount on their sentence, which I will apply in the manner set out below.

1. The two offenders pleaded guilty to an offence that on 3 April 2017 they assaulted Ms Laura Bowling and in so doing caused her actual bodily harm. 

1. The incident arose from a misguided attempt to retrieve a television set that the offenders perceived to have been stolen from them by Ms Bowling’s boyfriend. Whatever the actual position was in respect of the television, Ms Bowling was an innocent bystander.

1. The attack might be categorised as one in which the offenders took the law into their own hands or otherwise attempted to obtain a ‘just’ result. In reality they were acting entirely without justification and attacking a person who was completely innocent and had nothing to do with the television set.

1. According to the agreed statement of facts, the attack on Ms Bowling was primarily carried out by Ms Krutsky. The victim experienced ringing in her ears, had some of her hair pulled out, sustained a bite on her right arm, a bruise on her forehead and lumps on the back of her head. The photographs in Exhibit 5 probably do not do justice to the injuries. In addition, Ms Bowling was no doubt terrified by the experience, as was her 13-year old daughter, who witnessed the assault.

1. In my view, the attack should be regarded as being of approaching medium objective seriousness.

1. The offence is contrary to s 24 of the Crimes Act 1900 (ACT). It carries a maximum penalty of five years imprisonment.

1. Ms Krutsky has also asked the Court to take into account two further charges:

(a)An offence of trespass on premises (CC 2017/13149), relating to unlawful trespass at the relevant address on 3 April 2017; and

(b)An offence of common assault (CC 2017/3955), relating to an assault on Ms Laura Bowling on 4 April 2017.

1. The maximum penalty for the offence of trespass on premises is a fine of $1,500. The maximum penalty for the offence of common assault is two years imprisonment.  

1. Both offenders were arrested on 4 April 2017. They were denied bail. Ms Krutsky has been in custody for 240 days.

1. Mr Weldon has been in custody for 229 days. The difference between the dates arises because Mr Weldon spent some time in prison for other offences.

1. Ms Krutsky was born in 1972 and has a criminal history extending through Queensland, New South Wales and the Australian Capital Territory.

1. Personal information regarding Ms Krutsky was sparse. However when she was 17 she was the subject of a very traumatic event. The perpetrator was charged but a jury could not agree on his guilt. Ms Krutsky turned to drug use which has plagued her for many years. She also suffers from depression but is apparently stable on antidepressant medication.

1. She lives with a Mr Mobbs, who is disabled as a result of a motor vehicle accident. She assists him as a carer and it is her intention to return to this role in the future. She has taken a number of courses while in custody to help her deal with her assorted problems (Exhibit A).

1. Ms Krutsky has five children and two grandchildren. She would like to take more part in the lives of her grandchildren.

1. Mr Weldon was born in Wagga Wagga in 1980. He is of Aboriginal heritage. He is one of five siblings. He was denied a healthy upbringing by a “violent alcoholic” father who was abusive to his mother and the children. His background raises the type of issues described by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

1. Mr Weldon left home when he was 14 years old, to get away from his father. However, he soon began to get into trouble. He used alcohol to escape the horrors in his past. He became an alcoholic and accumulated a not insubstantial criminal record. The Pre-Sentence Report and Court Alcohol and Drug Assessment Service Report (‘CADAS report’) were prepared in 2016 in respect of different offences in the Magistrates Court.

1. Mr Weldon has completed some study and has had some employment. At one stage, he was involved in running a recording studio, which apparently was quite successful.

1. Mr Weldon has two daughters from two previous relationships. He expressed to the authors of the CADAS report that “…I am not like my dad…I need to be a positive role model for my children and others”. One of his previous partners was heavily involved in drugs.

1. Besides using alcohol, Mr Weldon has a history of cannabis, heroin and amphetamine use. He clearly needs to deal with his addictions. He is currently receiving methadone treatment and is anxious to enter a residential treatment program. The authors of the CADAS report express support for Mr Weldon’s entry into a residential program. The CADAS report, dated 28 July 2016, notes that Mr Weldon presents with:

…insight and awareness regarding the harms and dangers of his substance use… [and] appeared to be motivated to sustain abstinence from drug use, to improve his general health and to address reported problems and concerns.

1. I have been provided with a letter from Wayback Ltd, dated 14 February 2017. Wayback Ltd is a charitable organisation that provides residential treatment for drug and alcohol related problems. Mr Weldon was first admitted to the program in October 2016. He was also admitted to a detoxification unit at Fairfield Hospital in January 2017. He returned to Wayback Ltd on 31 January 2017 but his continuation at Wayback was obviously interrupted by his criminal activity.

1. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT) and the purposes of sentencing, as stated in ss 6 and 7 respectively. I am also particularly mindful of s 10, which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

1. In this case, imprisonment is inevitable. No argument was put to the contrary. No submission was made for the imposition of an Intensive Corrections Order. An Intensive Corrections Order is plainly not appropriate, particularly having regard to the length of time the offenders have already spent in custody.

1. The Crown has referred me to two cases involving sentencing an offender for the offence of assault causing actual bodily harm. The two cases are R v Newman; R v Reid [2016] ACTSC 102 and R v Zdravkovic [2017] ACTSC 70. Neither case is comparable on a factual basis but nevertheless they both set out the appropriate principles. I note however that in the former matter the two offenders were dealt with by way of Intensive Correction Orders. The harm occasioned in Zdravkovic appears to have been significantly greater than in the present case although that factor, of itself, is not necessarily determinative.

1. I have decided to deal with the offenders in the following manner. Ms Krutsky should receive a slightly longer sentence than Mr Weldon. The appropriate punishment for her is nine months imprisonment, commencing on 4 April 2017. The discount that she received for her plea of guilty is effectively cancelled by my taking into account the common assault offence. I think it would be inappropriate to increase the sentence by reason of the trespass offence because it can only be dealt with by way of a fine.

1. Mr Weldon will be sentenced to 8 months imprisonment commencing on 15 April 2017. The difference between the sentences is a result of the plea of guilty and the lesser role played in the offence by Mr Weldon.

1. I make the following orders:

Rebecca Katherine Krutsky

1. In respect of count 2, assault occasioning actual bodily harm (XO 2017/31175), the offender is sentenced to 9 months imprisonment commencing on 4 April 2017 and ending on 3 January 2018.

Douglas James Weldon

1. In respect of count 2, assault occasioning actual bodily harm (XO 2017/31174), the offender is sentenced to 8 months imprisonment commencing on 15 April 2017 and ending on 14 December 2017.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 30 November 2017