R v Latu
[2019] ACTSC 109
•18 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Latu |
Citation: | [2019] ACTSC 109 |
Hearing Date: | 17-18 April 2019 |
DecisionDate: | 18 April 2019 |
Before: | Murrell CJ |
Decision: | Sentenced to a total of 20 months’ imprisonment to be suspended after five months, on a good behaviour order for two years. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Causing grievous bodily harm – Where the offence involves a one-punch assault – Where the offence was committed with a co-offender – Parity of sentence |
Legislation Cited: | Crimes Act 1900 (ACT) s 25 Crimes (Sentence Administration) Act 2005 (ACT) ss 108, 109 Crimes (Sentencing) Act 2005 (ACT) ss 7, 17(2)(b), 33, 35 |
Cases Cited: | Field v Unas [2019] ACTSC 13 R v Barton [2001] NSWCCA 63; 121 A Crim R 185 R v Tonga [2015] ACTSC 365 |
Parties: | The Queen (Crown) Isaiah Jordan Latu (Offender) |
Representation: | Counsel Ms V Conliffe (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Numbers: | SCC 193 of 2018; SCC 194 of 2018 |
Murrell CJ
The offender is to be sentenced for the offence that on 22 October 2017, by an unlawful or negligent act or omission, he caused grievous bodily harm to Matthew David Tink.
This is an offence against s 25 of the Crimes Act 1900 (ACT) (Crimes Act). It carries a maximum penalty of five years’ imprisonment.
In sentencing the offender, the court is to take into account the additional offence that, on 22 October 2017, the offender assaulted Mr Robertson. When separately charged, the offence of common assault carries a maximum penalty of two years’ imprisonment.
Further, pursuant to ss 108 and 109 of the Crimes (Sentence Administration) Act 2005 (ACT), the Court is asked to consider the breach of a good behaviour order under s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). That order was imposed by the Magistrates Court on 16 March 2017, for an offence of assault occasioning actual bodily harm that had occurred on 9 December 2016.
The events of 22 October 2017 had a catastrophic impact on the primary victim, Mr Tink, and the Court acknowledges his significant suffering.
Pleas
The original indictment charged reckless infliction of grievous bodily harm to Mr Tink (causing grievous bodily harm by unlawful or negligent act or omission was charged in the alternative), assault occasioning actual bodily harm to Mr Nesbitt and common assault to Mr Robertson (as a transferred charge).
On 21 November 2018, following a criminal case conference and before the matter was listed for trial, the prosecution accepted a plea of guilty to the alternative charge, determined not to proceed with the charge concerning Mr Nesbitt and agreed that the transferred charge should be taken into account when the court was sentencing the offender on the alternative charge.
In these circumstances, the appropriate discount under s 35 of the Sentencing Act is about 15 per cent.
Facts of breach offence
At about 11 PM on 9 December 2016, the offender was at a nightclub. He approached the victim and put his arm around the victim’s shoulder. The victim resisted. The offender remonstrated with the victim and then head-butted him, causing a two centimetre laceration to the victim’s forehead. The offender was removed from the nightclub. He was arrested later that night.
Facts of principal offence
In the early hours of Sunday, 22 October 2017, the offender and Mr Field, a co-offender, encountered Mr Tink lying on the ground in the middle of Theatre Lane, which is behind the Canberra Theatre in the Civic area of Canberra.
Some liquid was poured over Mr Tink. Either the offender or Mr Field said “oh, you have just pissed on him” although, in fact, neither had urinated on Mr Tink.
Mr Tink jumped up and pushed Mr Field. The offender ran away and was followed by Mr Tink. Mr Tink was running away from Mr Field in the same direction as the offender. Mr Field followed closely behind Mr Tink.
It may be that the offender perceived that he was being chased by Mr Tink. However, Mr Tink was in fact running from Mr Field. In any event, the offender stopped on Theatre Lane, turned and forcefully punched Mr Tink in the face.
I accept that the momentum with which the victim was running contributed to the force with which he felt the punch. Nevertheless, the punch was delivered to the victim’s face, a vulnerable area of his body, and was delivered with considerable force. On the CCTV image, the victim is seen to be flying through the air. Mr Tink fell backwards and the back of his head hit the road surface, rendering him unconscious.
Mr Field remained in the vicinity of Mr Tink while the offender ran away towards the London Circuit car park. A group of Mr Tink’s friends approached and remonstrated with Mr Field, who walked away towards the London Circuit car park.
One of Mr Tink’s friends, Mr Nesbitt, followed Mr Field and spoke to him. The offender and Mr Field approached Mr Nesbitt, and Mr Field punched Mr Nesbitt in the face. There was a short scuffle and Mr Nesbitt dropped to the ground, where Mr Field continued to assault him.
Mr Robertson came to Mr Nesbitt’s assistance. The offender punched Mr Robertson several times. This assault is the subject of the additional charge.
Mr Nesbitt was still on the ground. Mr Field kicked him before he and the offender ran off towards the London Circuit car park.
Mr Tink was admitted to the Canberra Hospital, where he remained an inpatient for three days. A medical practitioner reported that the injuries sustained by the victim were extremely serious and potentially life-threatening. He suffered complex skull fractures, bleeding within and around his brain, a laceration, bruises, and abrasions. He had symptoms of concussion for six weeks after the initial injury.
Victim impact
As a result of the concussion, the victim has completely lost his memory of the period between when liquid was poured over him and when a cannula was inserted into his arm in hospital.
For the month following the incident, the victim was very disabled; he was confined to bed and was in significant pain. His jaw had been dislocated and was very sore. He suffered dizziness and headaches that persisted for some time. He had restricted neck movement. He was unable to participate in gym activities for a substantial period of time because of dizziness. Fortunately, he has been able to return to those activities.
The victim was unable to work for a period of two months and lost significant income. For that period, he was financially, as well as physically, dependent on his parents. The victim’s physical injuries also prevented him from taking a much-anticipated overseas holiday.
In addition to significant physical pain and restriction, the assault has caused significant post-traumatic distress and anxiety. The victim has experienced nightmares and flashbacks. Understandably, he is terrified of a further unprovoked and unexpected assault. He fears going out at night, and for some time he was unwilling to return to Civic, the scene of the crime. He is now prepared to go out in public, but remains highly vigilant and prefers to remain in the company of friends when out, particularly at night.
The victim has been advised that, because of the complex skull fractures, his brain is vulnerable and he should avoid contact sports and occupations that carry a risk of head injury, including policing. The victim’s family have served in the police force and the victim had aspired to become a police officer. The incident has shattered this aspiration.
The incident has also impacted greatly on the victim’s mother, who has had to endure watching her son in pain and assist him to regain physical and psychological independence. She has vicariously experienced the suffering of her son. Her personal and professional plans have been impacted. No doubt, other members of the victim’s family and his friends have been impacted in similar ways.
Objective seriousness of principal offence
The objective seriousness of the offence is to be determined by reference to the culpability of the offender’s conduct and the seriousness of the harm occasioned to the victim.
As to conduct, the prosecution relies upon the “unlawful act” of assault. The assault was a deliberate and forceful act. By its nature, the conduct assumes greater objective seriousness than many negligent acts which might be the subject of a charge under s 25 of the Crimes Act. Assessed against the conduct that might be the subject of other offences against s 25, the offender’s conduct was serious.
On the other hand, the assault was impulsive, and it involved the victim running towards the offender in circumstances where the offender may have mistakenly perceived that the victim was chasing him. The assault involved only one blow. I accept that the momentum of the victim running towards the offender would have exacerbated the force of the blow. Nevertheless, it must have been a forceful blow to have caused the victim to fly through the air as he did. The blow was delivered to the head—a vulnerable part of the body. Further, the one blow delivered to this victim was part of a course of conduct, which involved, notably, the additional offence of assaulting Mr Robertson, to whom the offender delivered several punches.
The impact on the victim was grave. However, any form of grievous bodily harm is, by definition, really serious injury. By reference to the spectrum of what comprises grievous bodily harm, the harm suffered by the victim of this offence was moderately severe, but not in the most serious category.
Subjective features
At the time of the offences, the offender was 19 years old, almost 20 years old. He is the second oldest of five children. The family is close. Many family activities centre on the family’s sheep property in Michelago, which has been in the family since 1862. The offender has learnt to undertake necessary farming activities such as shearing, drenching and fencing. The offender’s grandparents are involved with the property, and are central to the family structure.
The offender reported childhood issues of alcohol-related conflict and aggression between his parents. The offender’s mother referred to many years of domestic violence, alcohol abuse, intimidation and unfair treatment towards herself and her children. In addition, as the offender’s father is of Tongan background, the offender and other family members have had to deal with racial prejudice.
Recently, the offender completed Year 12. The offender is employed as a second-year apprentice carpenter and is a valued employee. His employer describes him as a hard-working, trustworthy and loyal employee who displays a strong work ethic.
The offender is an elite athlete. He enjoys a strong peer network within the football community. He was named in the Australian Junior Wallabies under 20s team, which travelled to France in 2018 and played in the Juniors Rugby World Cup. Recently, he was named in the NSW Country Under-23s team, which is to travel to New Zealand in October 2019. The offender assists by coaching his sister’s Under-12s team, and provides strong mentorship to other young football players.
The offender is a committed youth member and mentor for the Tongan Catholic Community of Canberra and Queanbeyan Community Children’s Group, and is actively involved with the church choir and charity events. He often volunteers his time to the young Tongan community, for example by teaching rugby skills.
Referees described the offender as a gentle, courteous, kind, and respectful individual. In December 2017, when the offender’s grandmother suffered a severe stroke, the offender provided significant support. Referees attested to the fact that the offender has demonstrated leadership skills since his school days. Several referees stated that the offender is remorseful.
I accept that the offender is generally a person of excellent character. Unfortunately, when he is under the influence of alcohol, the position is otherwise.
The offender appreciates that he has a problem with alcohol abuse. In August 2018, he voluntarily approached Catholic Care and he has since participated in their alcohol and drug program, where the focus has been upon developing coping strategies and life skills, as well as relapse prevention strategies. He has attended on three occasions. His counsellor reported that he is motivated and engaged with treatment.
The author of the sentencing assessment report stated that the offender may benefit from programs and counselling that address conflict resolution and emotional management.
The offender has some insight into the offending but has persistently maintained that he was motivated by self-defence. By this, I take it that the offender means that he thought that he was being chased at the time. However, self-defence does not extend to excessive self-defence, which (at the highest) was what occurred in this case. The offender has not acknowledged that while he may have perceived that he was being chased, in fact, he was not. Nor does he appear to have focused on the impact on the victim, instead preferring to focus on the consequences for himself and his family. I accept that this attitude is largely reflective of the offender’s immaturity. At 20 years of age, young men tend to be self-focused and do not appreciate their position in a more global context.
The offender was assessed as at low risk of re-offending.
The co-offender
The facts upon which Mr Field was sentenced differed slightly and, for obvious reasons, had a different focus.
The facts upon which Mr Field was sentenced were that, after someone urinated on Mr Tink, Mr Tink chased the offender, who turned and punched Mr Tink to the head and then ran off, leaving him unconscious on the ground. Mr Field remained with Mr Tink until Mr Tink’s friends arrived and then ran off.
Mr Field was chased by Mr Nesbitt. The offender and Mr Field then repeatedly assaulted Mr Nesbitt. Mr Robertson attempted to intervene and was punched by the offender and Mr Field. Mr Nesbitt was knocked to the ground, where the offender and Mr Field continued to punch and kick him to the head until he lost consciousness (that being the offence of assault occasioning actual bodily harm by Mr Field). Mr Nesbitt sustained multiple facial fractures to his lower jaw, sinus and nose, as well as bruises, abrasions and symptoms of concussion. He was conveyed to hospital, where he was treated conservatively.
In these proceedings, the allegations against the offender in relation to Mr Nesbitt were abandoned and the CCTV imagery confirms that to have been the appropriate course. I have mentioned the allegations against the offender mentioned them because they were part of the facts upon which Mr Field was sentenced.
On 13 August 2018, the Chief Magistrate sentenced Mr Field to 9 months’ imprisonment (reduced from 12 months for the guilty plea), for the offence of assault occasioning actual bodily harm to Mr Nesbitt. That offence, like the subject offence, carries a maximum penalty of five years’ imprisonment. Her Honour ordered the sentence to be suspended after three months, subject to an undertaking to comply with good behaviour obligations for a period of 18 months from release. At the same time, her Honour imposed an 18-month good behaviour order for an associated offence common assault on Mr Robertson.
When sentencing Mr Field, the Chief Magistrate accepted that the offender had been the instigator of events and that, initially, Mr Field had played a lesser role. Mr Field was a young man with no prior criminal history and he was remorseful. He had taken steps to address factors contributing to the incident, and had sought medical assistance in relation to alcohol abuse. The Chief Magistrate considered that the seriousness of the offence demanded a period of fulltime imprisonment, albeit that such a sentence was one of last resort. Her Honour afforded leniency to Mr Field because, having regard to his youth and other factors, she considered that rehabilitation was an important sentencing objective.
I dismissed an appeal against sentence in which it had been argued that the Chief Magistrate had failed to explain why the sentence of imprisonment must include a period of fulltime imprisonment: Field v Unas [2019] ACTSC 13.
At the time of the offences committed by him, Mr Field was approximately the same age as the offender. However, Mr Field had no criminal history.
In relation to the offence committed against Mr Robertson, the prosecution submitted that there is no distinction between the objective seriousness of the conduct of the offender and Mr Field. I agree with that submission.
Although the principal offences committed by the offender and Mr Field differ in relation to conduct, victim and nature of charge, there are some general similarities arising from the shared circumstances.
However, the forceful punch delivered by the offender to Mr Tink and the extent of the injuries suffered by the victim mean that the offence committed by the offender warrants a more significant sentence. Further, the offender’s subjective circumstances are significantly less favourable than those of Mr Field.
Other sentencing considerations
The Court has regard to the sentencing purposes in s 7 of the Sentencing Act. Most purposes have some importance in the present exercise; of particular relevance are the purposes of general deterrence, accountability, denunciation, recognition of harm to the victim, and rehabilitation. In relation to general deterrence, the Court has repeatedly emphasised the need for general deterrence when offences occur in situations of alcohol-fuelled violence in public and semi-public locations. The offender was intoxicated at the time of the principal offence, as was the case in the breach offence. In relation to rehabilitation, the offender’s youth, engagement in counselling and in community activities, family ties, and risk assessment demonstrate the need to support his rehabilitation through the sentence that is imposed.
As the offence was associated with the additional offence of common assault, the sentencing purpose of personal deterrence assumes prominence: R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at [64], approved in R v Campbell [2010] ACTCA 20 at [47]. Personal deterrence is also important having regard to the nature of the breach offence, and the fact that the offender was on conditional liberty for that offence at the time of the current offence.
I have endeavoured to take into account those matters in s 33 of the Sentencing Act that are known and relevant; they are referred to above.
I was taken to several decisions which were said to be somewhat comparable. It is well-established that comparable cases can be used as a yardstick but are in no sense determinative of what is appropriate in a particular case.
In R v Tonga [2015] ACTSC 365, Burns J sentenced a 24-year-old man of prior good character for an offence against s 25 of the Crimes Act. The victim had suffered a fractured jaw and broken and displaced nose, as well as psychological sequelae as a consequence of two strikes to the head. His Honour imposed a five-month sentence, discounted by 20 per cent from a starting point of approximately six months. After the offender had served two weeks, the sentence was suspended for a period of 18 months. In that case, the offender’s subjective circumstances were more favourable in that he was of prior good character. The offence was also less serious because the harm was less serious than that in the present case.
In R v Byrne [2015] ACTSC 113, the offender was sentenced for an offence against s 25 of the Crimes Act which, at that time, carried a maximum penalty of two years’ imprisonment. A one-punch assault resulted in extremely severe head injuries to the victim. The offender had spent seven months in custody. He was 18 years of age at the date of the offence. He had a “rather significant criminal history” and, at the time of the offence, was on conditional liberty. The sentencing judge took into account the delay between the commission of the offence and the sentencing, a period of nearly four years and imposed a sentence of 12 months’ imprisonment, suspended for 12 months.
Sentence
The offender is convicted of the offence charged in the indictment.
In relation to both the breach offence and the principal offence, I consider that imprisonment is the only appropriate penalty and that, to meet sentencing purposes such as general deterrence and recognition of harm to the victim, some period of imprisonment must be served by way of fulltime detention.
I find that the breach of good behaviour order is established. In relation to the breach offence, the offender is sentenced to one month’s imprisonment, from 18 April 2019 to 17 May 2019.
In relation to the principal offence, taking into account the additional offence, the starting point for the sentence is two years’ imprisonment, which I reduce to 20 months’ imprisonment for the plea of guilty. That sentence will be served concurrently with the sentence of one month’s imprisonment and will commence on 18 April 2019. After the offender has served five months of this sentence, on 17 September 2019, the remaining 15 months of the sentence will be suspended on the offender entering into a good behaviour order for a period of two years, from 17 September 2019 to 16 September 2020. The good behaviour order will be subject to the conditions that the offender accepts the supervision of Community Corrections and reports to Community Corrections within two working days of release.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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