R v Lacey
[2020] ACTSC 241
•11 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lacey |
Citation: | [2020] ACTSC 241 |
Hearing Date: | 8 July 2020, 8 September 2020 |
DecisionDate: | 11 September 2020 |
Before: | Elkaim J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – causing grievous bodily harm – breach of Good Behaviour Order |
Legislation Cited: | Crimes Act 1900 (ACT) s 25 |
Cases Cited: | R v Carmody (No 3) [2017] ACTSC 60 |
Parties: | The Queen (Crown) Shaun Anthony Lacey (Offender) |
Representation: | Counsel C Wanigaratne (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 117 of 2019; SCC 148 of 2019 |
ELKAIM J:
On 11 February 2020 the offender pleaded guilty to a single count of causing grievous bodily harm (SCCAN19/2020) on an indictment dated 6 February 2020. This offence is contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty is five years’ imprisonment.
The plea of guilty entitles the offender to a discount on his sentence which I assess at 25%.
When the matter initially came before me on 8 July 2020, the offender asked for a referral for an Intensive Correction Order (ICO) assessment. With some reluctance, I agreed to the request. The assessment, dated 3 September 2020, says the offender is suitable for an ICO.
The facts are set out in detail in the Statement of Facts. In summary, on 28 October 2018 the offender was out and about in Civic celebrating Halloween.
Noting the participation (but not necessarily culpability) of Mooseheads in an inordinate number of offences in the ACT, at about 3:40am the complainant left this establishment on his way to a nightclub. He was with friends.
The complainant asked a group of males for a light for his cigarette. The offender was one of the males. Another in the group, Mr Vardos, teased the complainant by holding a lighter very close to his skin. The complainant pushed the lighter away. Mr Vardos slapped the complainant in the face and the offender pushed him from the back. The offender followed the complainant and punched him in the jaw with his left hand. The complainant lost consciousness and fell to the ground.
The offender, not surprisingly, went to Mooseheads. A security employee at this establishment, Mr Barnes, was told what had happened. Mr Barnes brought the offender to the front of the establishment to await the arrival of the police.
The police arrived to find the complainant unconscious with blood emanating from his mouth. The police questioned the offender who made a weak attempt at justification by saying “He got right up in my face, so I hit him”.
In respect of objective seriousness I adopt the approach taken by the Chief Justice in
R v Myles [2017] ACTSC 194 at [13]:
In this case, the offender deliberately delivered an unanticipated, unprovoked and strong punch to the victim's face. It is true that the conduct involved in a single punch may be of somewhat lower objective seriousness than a sustained attack, but a punch to the face is an obviously dangerous act, as the face is the most vulnerable area of the body. The offender's conduct was impulsive. There was no premeditation. Other aggravating features such as the use of a weapon, or the circumstance that the offence was committed in company, were not present.
On the above basis I assess the objective seriousness of this matter at above medium for offences of this type.
The complainant suffered the following injuries:
(a)A moderate to severe traumatic brain injury;
(b)A left epidural haematoma;
(c)A left temporal subarachnoid haemorrhage with a maximum depth of 9 mm;
(d)A hairline base skull fracture; and
(e)A right-sided temporo-occipital scalp haematoma.
Consistent with these injuries the complainant was admitted to Canberra Hospital where he remained for 25 days before an extensive period of rehabilitation. Initially, on discharge from rehabilitation, the complainant could not drive, live independently or work.
This complainant now lives with an acquired brain injury. Its effects will probably stay with him for the rest of his life; all of this because the drunken offender could not contain his temper and, for no good reason, attacked the complainant.
When the matter first came before me in July, I asked for an update on the complainant’s condition. The only medical result was a report (Exhibit C) from a speech pathologist dated 5 August 2020. The report says that the complainant has returned to work at a hotel and has received a promotion to the position of a receptionist. He has also apparently achieved some goals concerning his word finding difficulties and he is due to be discharged from the speech pathology service in the near future.
I have also been provided with a letter from the complainant’s parents (Exhibit D). They describe their initial fears about the likelihood and extent of his recovery. They conclude:
[The complainant] is still the friendly, good natured kid that he has always been; although, this assault has affected him on multiple levels. Not mentioned above as a concern but [the complainant] is now less trusting of others and the unknown. Whereas previously everybody was his friend or potential friend, he treated everyone with acceptance and kindness. This has faded since the assault with [the complainant] being more cautious and non-trusting.
There is a Victim Impact Statement from the complainant. In the Statement he details what he has been through since the assault. He has little memory of the events of the night but does remember the path through rehabilitation and the journey to returning to a normal life. In addition his income was affected and he had to cancel plans to travel. His journey back to normal mental health is continuing.
When the offence was committed the offender was under a Good Behaviour Order that had been imposed by Magistrate Cush on 29 November 2017. The Order had been imposed in respect of a charge of assault occasioning actual bodily harm.
The offender has other convictions in the ACT for common assault.
The offender was born in England in 1988. He moved to Canberra with his family when he was 10 years of age. Although his parents have separated he remains close to them and to an older sister.
The offender completed Year 10 but had faced suspension for behavioural issues. According to his mother he had been previously bullied at school to the extent of suffering from a Post-Traumatic Stress Disorder.
The offender has worked in the building and construction industry and is currently employed as an air-conditioning and refrigeration technician.
The offender has a current partner and they have a young child. The offender has two other children from separate relationships. They live with their respective mothers.
The offender was a binge drinker and, as is often the case, use of alcohol on that basis led to criminal behaviour. He has apparently not consumed alcohol since this offence. He was also using cocaine. It is not clear whether he continues to do so.
The offender has suffered from anxiety and is on medication to address this problem. There was a suicide attempt in 2018 but he no longer has suicidal ideations. He also suffers from anger management issues but has completed a prevention program with Every Man Australia.
The offender told the authors of the Pre-Sentence Report that he understood the seriousness of his behaviour and that the complainant had not deserved to be treated as he had been. He has been assessed as having a low to medium risk of general re‑offending. No doubt this will be dictated by his use of alcohol and drugs.
The offender was seen by Ms Leesa Morris, a forensic psychologist. According to Ms Morris:
Mr Lacey presented as an emotionally sensitive man who is developing in his maturity and self-awareness. He has expressed remorse for his actions and demonstrated significant change in his thinking and behaviours since his release from custody. Mr Lacey’s only remaining risk factor is that of returning to substance use in times of distress. For this reason, it is recommended that Mr Lacey continue to access psychological intervention to address his communication, interpersonal and conflict management skills and emotion regulation techniques.
I believe that Mr Lacey currently presents a low risk of recidivism and that this would be confirmed with psychological intervention. He impresses as having a measured level of remorse that is commensurate with his realisation of the profound impact his actions have had not just on the victim and his family, but also Mr Lacey’s own.
The offender is now 32 years of age so it is not before time that he achieves the maturity and self-awareness as referred to by Ms Morris. He has children and he has responsibilities. He is either going to honour his obligations or carry on with a life dictated by alcohol, drugs and overwhelming stupidity.
As I have already noted, the offender has been assessed as suitable for an ICO. The ICO Assessment Report discloses that the offender has attended an anger management program which brought home to him, finally, “the importance of accountability and responsibility”. The Report concludes:
Mr Lacey is a 32-year-old man who enjoys the benefit of a supportive family, ongoing employment and stable accommodation. He appears to be abstaining from [drug and alcohol] use and has successfully completed the Preventing Violence Managing Anger program through Every Man Australia, on his own accord.
Mr Lacey has been assessed as a low–medium risk of general re-offending. This assessed risk is primarily due to the offender’s alcohol and drug abuse issues, anti-social companions, emotional and personal issues.
Mr Lacey demonstrated his commitment and potential to successfully complete an ICO with consistent engagement throughout the assessment period. It is the opinion of this Service that he would benefit from participating in psychological counselling and cognitive behavioural therapy.
The course that I will take has been to a large extent dictated by the need for rehabilitation and the public need for a menace to become a contributing member of society. This is an approach which was well summed up by Refshauge J in R v Carmody (No 3) [2017] ACTSC 60 from [8]:
8. As I explained in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[18], the Intensive Correction Order as a sentencing order replaced the sentence by which a term of imprisonment was to be served by periodic detention. It is a punitive sentence while incorporating elements of rehabilitation. It aims to combine supervision and strict conditions with an opportunity for an offender to change his or her behaviour, thus promoting simultaneously the best interests of the community and the best interests of the offender, as well as those who are dependent upon him or her.
9. As I explained also in R v Ngerengere (No 3) at [20]-[21], the similar sentence in New South Wales has been described as having a “principal focus” on “rehabilitation” but being “a substantial punishment”, though with a significant degree of leniency. Victoria has also accepted that it is “a significantly punitive disposition”.
In Myles the Chief Justice took a similar approach although that case had the important difference that the offender did not have a significant criminal record. Nevertheless, as in this case, rehabilitation played an important part. Her Honour said, from [32]:
32. General deterrence is a very important sentencing consideration. The community is gravely concerned about the prevalence of alcohol fuelled “one punch” attacks by young men. Such attacks may devastate the lives of victims, and they impact on the ability of other young people to confidently enjoy public socialising. The sentencing purpose of general deterrence must be clearly reflected in the sentence that is imposed.
33. Rehabilitation is another very important sentencing consideration. The offender is a young man with no relevant prior criminal history and excellent prospects of rehabilitation, particularly as he has recognised that, but for his alcohol abuse, the offence may not have occurred. He is actively addressing his alcohol problem, with positive results. From the community's perspective, it would be counterproductive to impose a sentence that undermined the offender's prospects for rehabilitation.
Notwithstanding the differences concerning the offender’s criminal record, the similarities with the present case centre upon the offender’s good prospects of rehabilitation and his attempts at dealing with his alcohol problem.
I note here, and I think it important, that the Crown did not wish to be heard against the imposition of an ICO, but did suggest that there be an additional community service component. The offender, in turn, did not oppose this suggestion.
I of course recognise the need for public deterrence. As I have said on many occasions, young males fuelled by alcohol must learn to behave or at least to receive the message that their conduct is completely unacceptable and, in particular, unnecessarily harmful to innocent members of the public.
Ultimately I think the ICO proposed by the offender should be imposed but combined with an order for community service as put forward by the Crown. I think the appropriate length of the sentence should be 3 years’ imprisonment, reduced to 27 months because of the discount.
I make the following orders:
(a)For the offence of causing grievous bodily harm (SCCAN19/2020), the offender is sentenced to 27 months’ imprisonment to commence today and end on 10 December 2022.
(b)The sentence of imprisonment is to be served in the community by way of an Intensive Correction Order.
(c)It is an additional condition of the Intensive Correction Order that the offender undertake 240 hours of community service work within 12 months from today.
(d)I take no further action on the outstanding breach of the Good Behaviour Order.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 17 September 2020 |
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Amendments
17 September 2020 Paragraph: [18]
Replace “The offender has other previous convictions, both in the ACT and in New South Wales” with “The offender has other convictions in the ACT for common assault.”
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