R v Lacey - [2020] ACTSC 241

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 R v Myles [2017] ACTSC 194
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lacey

Details

AGLC: R v Lacey [2020] ACTSC 241
Case: [2020] ACTSC 241
Decision Date: 11 September 2020

CaseChat Overview and Summary

The case of R v Lacey involved the appellant who had previously been convicted of causing grievous bodily harm (GBH) and was subject to a Good Behaviour Order (GBO). The appeal was brought before the court to address the sentence imposed by the lower court, which had found the appellant in breach of the GBO. The appellant contested the severity of the sentence, arguing it was excessive and disproportionate to the breach of the GBO. The court was tasked with determining whether the sentence was just and whether it complied with legal principles governing the sentencing for such breaches.

The court had to examine the nature and gravity of the breach of the GBO, considering whether the breach was minor or substantial. It also needed to assess the proportionality of the sentence imposed in relation to the breach, ensuring it aligned with the sentencing principles in Australian criminal law. The court had to balance the need for deterrence and the protection of the community with the individual circumstances of the appellant, including his previous criminal record and the seriousness of the original offence for which the GBO was imposed.

In its judgment, the court found that the breach of the GBO was significant and warranted a punitive response. However, it also noted that the sentence imposed was excessively harsh and did not reflect a balanced approach to the sentencing principles. The court held that while the breach was serious, the sentence should have been proportionate to the breach and not excessively punitive. Consequently, the appeal was allowed, and the matter was remitted to the lower court for resentencing, ensuring the new sentence complied with the legal standards for proportionality and justice.

Orders

Orders of the court

See [34]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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