R v KZ
[2020] ACTSC 307
•16 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KZ |
Citation: | [2020] ACTSC 307 |
Hearing Date: | 16 November 2020 |
DecisionDate: | 16 November 2020 |
Before: | Elkaim J |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – assault occasioning actual bodily harm – guilty plea |
Legislation Cited: | Crimes Act 1900 (ACT) ss 20(1), 24(1) |
Parties: | The Queen (Crown) KZ (Offender) |
Representation: | Counsel A Williamson (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 75 of 2020; SCC 76 of 2020 |
ELKAIM J:
I gave leave to the Crown to file a fresh indictment, dated 13 November 2020, in Court today. The young person pleaded guilty to the two counts in the indictment. He also acknowledged his guilt to a charge of common assault (CH346/2020) transferred from the Magistrates Court.
Count 1 is that the young person recklessly inflicted grievous bodily harm on Mr FZ on 21 November 2019. This is an offence contrary to s 20(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 13 years imprisonment.
Count 2 is that on the same day the young person assaulted Ms CZ occasioning her actual bodily harm. This offence is contrary to s 24(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of five years imprisonment.
The maximum penalty for the offence of common assault is two years imprisonment.
The trial of the young person was due to start today but, a week ago, he indicated an intention to plead guilty. Although the pleas are late he is nevertheless entitled to a discount for their utilitarian value. It is important to distinguish utilitarian value from remorse, because in this case the young person does not have the benefit of any indication of remorse.
I think the appropriate discount is approximately (because of rounding off) 10%.
The Statement of Facts in Exhibit A gives the details of the offences. The young person is the son of Mr FZ and Ms CZ. He was born in 2003. He has a younger sister, MZ.
The young person has a history of mental health problems which led to suicidal ideation and self-harming. He had professional help through a psychologist and a counsellor and then in early November 2019 he began seeing a psychiatrist. He was prescribed medication for ADHD and for depression.
Despite the treatment significant strains arose between the young person and his parents. He kept company with unsavoury peers. He smoked marijuana and was regularly absent from school. He rebelled against the boundaries his parents required of him. He reacted badly to acts of discipline, sometimes including being hit on the head, administered by his father.
On the evening of 21 November 2019 the young person and his girlfriend were smoking marijuana in the family home. At about 9pm the girlfriend went home. The young person took his medication. A little later his mother spoke to him about his disobedience of house rules and the need for him to seek rehabilitation. The discussion became an argument. The young person threatened to leave and went to pack a bag.
The young person’s father was in the midst of treatment for liver cancer and was feeling unwell. He heard the argument and went to the young person’s bedroom. The young person felt intimidated and thought physical force might be used against him. This was because corporal punishment, as described above, was not unusual in this household.
The young person took hold of a knife. His father was blocking the exit from the room. The young person stabbed his father in the upper left arm four times and once to the left lower back. He then pushed past his mother who tried to stop him. He stabbed her to the left upper arm. He ran out of the bedroom where he was met by his sister. He swung an arm at her which she was able to avoid. He left the house.
The young person was located by police soon afterwards. He tried to escape but was eventually cornered and apprehended by police. He was placed in custody and remained there until 27 October 2020 when he was released on bail.
The Crown accepts that in acting as he did the young person was in fear of aggression from his father. While this fear may have substantiated the beginnings of actions in self-defence, the response was so objectively unreasonable as to extinguish the existence of a defence to the charges. The Crown accepted however that there was no element of pre-meditation.
The injuries suffered by the young person’s father were serious. The stab wound to the left lower back led, in simple terms, to leakage from the chest cavity and a collection of blood between the lung and chest wall. There was a degree of bleeding within the left lower lung. A catheter was inserted to manage the collection of air and blood. Mr FZ remained in hospital for a week. He continues to suffer from the injuries including shortness of breath and chest pain. There is permanent scarring to his arm and back.
Ms CZ was treated at hospital for the stab wound to her arm. She was treated with intravenous antibiotics and opiate analgesia. She returned to the hospital on 24 November 2019 for surgery to close the wound.
The common assault relates to the young person swinging his arm toward the upper body of his sister as he made his way out of the house. The young person’s sister had to duck to avoid being hit by the young person.
The Crown, in its written submissions, has emphasised the need for an assessment of the objective seriousness of the offences. The Crown has pointed out what it considers to be aggravating features of the offending. These include the use of a knife and in particular the use of such a weapon by an able-bodied 16 year old against a terminally ill victim. The Crown is correct but other features are also important, such as the unchallenged perception of the young person of his father as a violent person. There is substance to this belief. His father gave evidence in a pre-trial application that he executed corporal punishment upon his son about once every three weeks.
The Crown submitted that I should avoid a mere recital of the facts attached to “highly imprecise terms such as being serious or very serious”. The Crown rather said that I should use apparently more helpful phrases such as “between the mid and upper end of the spectrum of objective seriousness for such offences”.
The Crown is right that objective seriousness is not described by labels. It emerges from the facts of the offence and is often a product of the existence of aggravating factors. There are aggravating factors in the crimes before the Court today, such as the health of the young person’s father. But there are also ameliorating factors such as the continuing assaults upon the young person, even if by an ailing father.
In my view the objective seriousness of the offence against Mr FZ is to place it above the mid-range of objective seriousness. I do not regard it as necessary to go further. As to the other offence, the injury is much less serious and is to some degree a product of KZ’s attempt to leave what he perceived as a threatening situation. His actions were an overreaction in pursuit of his bid to escape.
There was however, again, the use of a knife and the infliction of injury. I regard this offence as just below the mid-range of offences of this type.
There are Victim Impact Statements from the young person’s parents. They describe their hurt and shock at the conduct of their son. Mr FZ blames the society into which his son became a member. He says in his statement that the family relationship:
… has been destroyed by the consequence of sub cultural dialect of violence, adopted by KZ like a fashion, and imported into our family and perpetrated upon each member of the family.
Perhaps most striking is that Mr FZ ends his statement in this way:
I no longer wish for a further role in the guidance of KZ.
Ms CZ expresses her frustrations and her disappointment that the love and guidance with which KZ was provided has dissipated. She ends her statement by saying:
I am sad that I have lost the little connection I had with him, I am angry that I don’t seem to find an answer.
Perhaps disappointingly, but also perhaps a measure of the short period since the offending, neither parent express a desire to assist in the rehabilitation of their son.
There is a letter from Mr Joshua Leonard, the young person’s case manager at Child and Youth Protection Services. He says that KZ is currently under a voluntary care agreement through which the Director-General of Community Services can make decisions in the best interests of KZ.
He says that KZ is currently living at stipulated accommodation where he appears to be doing well. There are positive interactions between him and his case workers and also with his girlfriend and her parents. Efforts are being made to ensure his continued education which is the focus of his current case plan. An alternative is to pursue employment.
Another point made by Mr Leonard is that community service orders are not available to young persons. This is regrettable because any orders that I would make would have been enhanced by a community service order.
There is a reference from one of his teachers. She expressed shock on being provided with the details of the offences. To her eyes she had “always observed a very gentle, calming nature about KZ”. She regarded him as a sincere student dedicated to his hopes to work with animals. She thought of him as being isolated from his school peers and that the removal of vocational learning from his school may have led to a change in his disposition.
Dr Danielle Clout, a clinical psychologist, has provided a report dated 22 April 2020. In addition to confirming the young person’s mental health background Dr Clout identifies a cannabis use disorder.
Dr Clout says that KZ outlined
… an extensive history of exposure to psychological and physical abuse in the home environment, perpetrated by both his mother and father. His account of the incident indicates that his parents had been aggressive to him, and he described feeling “scared”, “angry”, and “trapped”, and acted out in this context.
According to Dr Clout the young person initially had a good relationship with his mother but this changed when he perceived that she was not defending him against abuse from his father. He clearly had a very low self-esteem and developed a significant hatred for his father. Nevertheless, he told the doctor that he had not wanted to stab his father.
KZ apparently started drinking alcohol when he was much younger but drank more for a period to help him “block things out for a while”. He has not consumed alcohol since he was 14.
KZ started using marijuana when he was 12 and it became a daily habit. He said that the marijuana helped him with his anxiety and capacity to cope. He has not used marijuana since his arrest.
Dr Clout referred to the mental health problems as including Autism Spectrum Disorder and Attention Deficit/Hyperactivity Disorder. The latter arose from problems with “concentration, attention, distractibility, impulsiveness, and restlessness”. He told the doctor about suicide attempts and self-harm. However he denied that he maintained any suicidal ideation.
KZ has no other criminal convictions. This is in his favour. But much more importantly, a person of his age must be given every opportunity for rehabilitation. He must be allowed to live in an environment where his mental health issues can be addressed and where he is under the supervision of persons who have his best interests at the forefront. The director-general, through people like Mr Leonard, are clearly such persons.
Ms Morrisroe initially said, somewhat to my surprise, that the appropriate punishment was a “bond”. She later explained her submission to describe a good behaviour order. She said that KZ had already been in prison for 11 months and this more than met the requirements of punishment for the offences.
I disagree with Ms Morrisroe. In my view the seriousness of these offences, in particular the offence against Mr FZ requires a continuing term of imprisonment but this term should be suspended in order to achieve the necessary balance arising from the need for rehabilitation of a young offender. In addition specific and general deterrence are important. The comments made by the young person to his girlfriend from detention are concerning and he must know the certainty of spending future time in prison should he not comply with the orders that I will make.
The two indictable offences arose from essentially the same incident. There must however be a degree of accumulation to reflect the fact that they are separate offences and they were committed against separate persons.
Orders
I make the following orders:
(i)For the offence of recklessly inflicting grievous bodily harm the young person is sentenced to a term of imprisonment of 16 months (reduced from 18 months) to commence on 21 November 2019 and end on 20 March 2021.
(ii)For the offence of assault occasioning actual bodily harm the offender is sentenced to a term of imprisonment of 9 months (reduced from 10 months) to commence on 20 September 2020 and end on 19 June 2021.
(iii)For the offence of common assault the offender is sentenced to 1 month’s imprisonment to commence on 21 November 2019 and end on 20 December 2019.
(iv)The total term of imprisonment is 19 months.
(v)The balance of the above terms of imprisonment are suspended with immediate effect on condition the offender enter into a good behaviour order for a period of 24 months and during that period he:
a.Be on probation, subject the supervision of the Director-General.
(vi)The young person is not to contact or approach Mr FZ, Ms CZ or MZ and further he is not to attend their address except when in the company of the Australian Federal Police for the purposes of collecting personal belongings.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 16 November 2020 |
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