R v Lyons (No 1)

[2020] ACTSC 358

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Lyons (No 1)
Citation:	[2020] ACTSC 358
Hearing Date(s):	11 December 2020
Decision Date:	15 December 2020
Before:	Refshauge AJ

Decision:	1.	Mr Lyons be convicted of assault occasioning actual bodily harm on 28 September 2020.
2.	For that offence, Mr Lyons be sentenced to 13 months’
imprisonment, to commence on 28 September 2020.
3.	Mr Lyons be convicted of dangerous driving on 28 September 2020.
4.	For that offence, Mr Lyons be sentenced to eight months’
imprisonment, to commence on 28 July 2021, and be disqualified from obtaining or holding a driver license for six months, from 15 December 2020.
5.	Mr Lyons be convicted of common assault on 28 September 2020.
6.	For that offence, Mr Lyons be sentenced to six months’
imprisonment, to commence on 28 January 2022.
7.	Mr Lyons be found to have breached the Good Behaviour Order made on 17 August 2020 and that the Order be cancelled.
8.	Mr Lyons’ conviction for the offence of common assault
on 17 December 2019 be confirmed.
9.	For that offence, Mr Lyons be re-sentenced to three
month’s imprisonment, to commence on 28 June 2022.
10.	A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made from today, 15 December 2020, until 27 September 2022 in respect of Mr Lyons for the primary offence of assault occasioning bodily harm.
11.	The Drug and Alcohol Treatment Order be extended to the offences of dangerous driving, common assault on 28 September 2020, and common assault on 17
December 2019, each of which are associated offences.
12.	The convictions for the primary offence and associated offences have been confirmed, sentences have been imposed for, and those convictions and sentences are incorporated into the Drug and Alcohol Treatment Order, for the custodial portion of the Drug and Alcohol Treatment Order.
13.	The sentence of 24 months, being the total of the sentencing for the primary and associated offences, be suspended from today, 15 December 2020, until 27 September 2022, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
14.	For the treatment and supervision part of the Drug and Alcohol Treatment Order, Mr Lyons be required to comply with the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order and complete the residential rehabilitation program conducted by Canberra Recovery Services at Fyshwick ACT, and such other programs of treatment and case management required by the Treatment Order Team from time to time, or as ordered by the Court, including counselling, urinalysis, medical treatment, and such other treatment or programs as may be required from time to time.
15.	Mr Lyons be directed to travel directly to Canberra Recovery Services today, 15 December 2020, and admit himself to the residential program conducted by that agency by 2 pm today, to remain there until he has completed the program, and obey the rules of the facility and of the program and any directions of the officer in charge of the facility.
16.	Mr Lyons be directed to not leave Canberra Recovery Services until he has completed the program, or by leave of the Court, and that if he leaves or is discharged from the program before then, he is to present himself to ACT Corrective Services by 4 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed.
17.	Mr Lyons be directed to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means.
18.	Mr Lyons be directed to attend Court on 18 December 2020 at 11:30 am.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning bodily harm – common assault – furious, reckless or dangerous driving – plea of guilty – breach of good behaviour order – deemed unsuitable by a suitability assessment report –
drug and alcohol treatment order made
Legislation Cited:	Crimes Act 1900 (ACT) ss 24, 26 Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) ss 7(1), 12A, 33(1)(za), 46K, 80T(4), 80T(5), 80T(6)(b), 80W, 80Y Magistrates Court Act 1930 (ACT) s 90B Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7 Supreme Court Act 1993 (ACT) pt 8
Cases Cited:	Grimshaw v Mann [2013] ACTSC 189 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kelly v Ashby [2015] ACTSC 346 Monfries v The Queen [2014] ACTCA 46 Neal v The Queen (1982) 149 CLR 305 Pearce v The Queen (1998) 194 CLR 610 R v Amosa [2015] ACTSC 34 R v Carmody (No 3) [2017] ACTSC 60 R v Crawford (No 1) [2020] ACTSC 245 R v Day (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 5 July 2012) R v Forrest (No 2) [2017] ACTSC 83 R v Hawker [2020] ACTSC 79 R v Howell [2018] ACTSC 155 R v Jacka [2017] ACTSC 225 R v Johnson [2019] ACTSC 179 R v Matthews [2020] ACTSC 364 R v Pelecky [2020] ACTSC 246 R v PM (No 2) [2015] ACTSC 358 R v Potts [2018] ACTSC 299 R v Roberts (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 31 May 2010) R v Scott [2003] VSCA 55 R v Sharma [2016] ACTSC 180 R v Stanley [2015] ACTSC 322 R v TL (No 2) [2016] ACTSC 289
Parties:	The Queen (Crown)
Carl Christopher Lyons (Accused)
Representation:	Counsel
C Muthurajah (Crown)
J Campbell (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number(s):	SCC 247 of 2020
SCC 248 of 2020
REFSHAUGE AJ:
Introduction

1. While most offenders who are admitted to the Drug and Alcohol Sentencing List of the ACT Supreme Court have committed drug offences, or offences of dishonesty relating to the use or need to acquire illicit drugs, there is no reason why offenders who meet the criteria for eligibility under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), cannot be subject to a Drug and Alcohol Treatment Order (a Treatment Order) even though they have committed other offences such as serious driving offences (R v Pelecky [2020] ACTSC 246) or offences of violence.

2.       Accordingly, Carl Lyons now stands before me for sentence for the offences of assault occasioning actual bodily harm, common assault and dangerous driving, to which he has pleaded guilty.

The Facts

3.       Tendered without objection or challenge to its contents was a Statement of Facts which I admitted into evidence and from which I make the following findings.

4.       On 28 September 2020, the first victim was walking along Currong Street South in Braddon, ACT, late in the afternoon when Mr Lyons drove a motor vehicle dangerously along the street. He drove directly at her, causing her to hide behind a tree, but Mr Lyons drove the car into the tree. The victim called another person nearby, a driver in a car, for help to protect her, but Mr Lyons reversed the car and drove off. Later, however, Mr Lyons approached the driver whom the victim had called over and abused her, even though her four-year-old son was in the car.

5.       When driving away, she saw a person covered with a blanket on the ground. She stopped to provide assistance and was told that the person, the second victim, had been assaulted by Mr Lyons. Mr Lyons had come across the second victim possibly after he drove at the first victim. The second victim, who was 80 years old, was walking with his wife, their two young grandchildren and a dog, along a suburban street in Braddon. Mr Lyons approached the group, yelling at them in a non-sensical manner.

6.       They moved across the road to avoid him, but he slipped out in front of the second victim, looked him in the eye and struck him with force with his right fist on the left side of his face. The second victim fell back onto the road, hit the back of his head on the asphalt and blacked out. He soon regained consciousness. Mr Lyons then walked away. A number of people witnessed the attack. I was not told what, if any, medical assistance was provided to the second victim. I do note that a photograph provided showed him in what appears, almost inevitably or unarguably, to be a hospital bed.

7.       Finally, Mr Lyons appears then to have travelled to the bus stop at Commonwealth Avenue Bridge, where he boarded a bus and sat behind the third victim. He spat at the back of her head and saliva landed on the back of her head, on the windowsill and on the seat next to her. She got up and moved seats, but Mr Lyons then approached her and spat on her hair. The third victim noticed saliva on her hair and her jacket and the backpack that she was carrying. Mr Lyons got off the bus at Woden Bus Interchange. He presented himself to the police, who spoke to him, but he did not provide any information about the assault. They spoke to the third victim as well as a number of other witnesses to the disgusting attack.

The Proceedings

8.       Mr Lyons was arrested late afternoon on 28 September 2020 and brought before the

Magistrates Court the next day. He was described as being “not well - spitting,

swearing, unable to give instruction[s]". The proceedings were adjourned to the next day, when he was further remanded in custody. On 4 November 2020, after one further adjournment, he was, on his plea of guilty, committed to this Court on the charge of assault occasioning actual bodily harm.

9. The charge of dangerous driving and the charge of common assault were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT). It appears that it was intended that he be referred to this List for a Treatment Order. He appeared in this Court on 6 November 2020 and an assessment of his eligibility was ordered for the purpose of deciding if Suitability Assessments should be made. Later on that day, I found that he was eligible and I ordered Drug and Alcohol Suitability Assessments be made and the reports tendered, and that the matter be listed for sentence. Mr Lyons has remained in custody for this period.

The Offences

10. Assault occasioning actual bodily harm is an offence contrary to s 24 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of five years' imprisonment. In this case the assault was constituted by a single blow to the head which rendered the victim unconscious. It caused him to fall and hit his head on the roadway. As a blow to the head, it is a more serious offence since the head is a particularly vulnerable part of the body (R v Stanley [2015] ACTSC 322 at [65]).

11.     In R v Sharma [2016] ACTSC 180 at [18], Elkaim J pointed out why such an assault should be regarded so seriously when his Honour said:

a single punch, especially when made to a victim's head so that he is rendered unconscious and falls to the ground, has the potential to result in the most severe of consequences. This is especially so when the incident takes place on a city footpath where there is a strong likelihood of the victim striking his head on a very hard surface.

12.     The reason why Mr Lyons struck the second victim is unexplained. It is a matter of significance that the second victim tried to avoid engaging with Mr Lyons. Indeed, he actively tried to avoid him. As was pointed out in R v Howell [2018] ACTSC 155 at [13], it is relevant that the victim did nothing to warrant the attack (see also R v Amosa [2015] ACTSC 34 at [22]). The assault was committed in a public place, which is an aggravating factor for offences of violence, as explained in Grimshaw v Mann [2013] ACTSC 189 at [51]. This is in part because, as explained in R v Roberts (Unreported,

Australian Capital Territory Supreme Court, Refshauge J, 31 May 2010), “[v]iolence in any form is unacceptable in a civilised society”.

13.     The circumstances under which an offence of violence is committed may aggravate the offence. This will be so where the victim is protecting a vulnerable person (R v Day (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 5 July 2012)), where a prisoner is in custody or a custodial officer is the victim (R v Potts [2018] ACTSC 299 at [15], [18]), or where it is committed in circumstances amounting to family violence (R v TL (No 2) [2016] ACTSC 289 at [119]). None of these circumstances are present here, but it was a violent attack committed on a vulnerable man of 80 and in front of young children. That makes it a significantly more serious offence.

14.     Mr Lyons left the scene without rendering any assistance to the victim, or even checking to see if he was seriously injured. There was no planning or premeditation. While it was only one punch, it was violent enough to knock the victim unconscious. No weapon was used and though I accept that the immediate consequences were very serious, I had no evidence to suggest that the injury or injuries were any more serious than described or ongoing. The photographs show the victim in the hospital bed and the injury and bleeding to the left side of his face. I accept that there will be some ongoing mental and emotional effects. That Mr Lyons was obviously highly affected by drugs is a complex factor. It is not mitigating in itself, but it is some evidence to negative premeditation. It is really a matter best considered in the context of the subjective circumstances of Mr Lyons.

15. Common assault is an offence against s 26 of the Crimes Act 1900 (ACT), which provides a maximum penalty of two years' imprisonment. The offence consisted of spitting at the victim. It continued even after she had moved to avoid him. As the High

Court said in Neal v The Queen (1982) 149 CLR 30 at 312, “spitting is degrading, humiliating and insulting for the victim”. It was revolting behaviour, especially at the

time of the COVID-19 pandemic when the virus appears to be transmissible by spitting. It is inexplicable behaviour, slightly mitigated by the fact that Mr Lyons presented himself to police at the Woden Bus Interchange, but he did not provide police with any information about the assaults. All in all, it was a very serious version of the offence, although it did not involve any actual physical injury.

16. Furious, reckless, or dangerous driving is made an offence by s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), and the section sets out the maximum penalty of 12 months' imprisonment or a fine of $16,000, or both. I have given some consideration to dangerous driving in R v Pelecky, including to the related offences of aggravated dangerous driving and reckless driving. It is clear that it is a serious offence which, in an appropriate case, does attract a serious sentence of imprisonment (Kelly v Ashby [2015] ACTSC 346). Some of the relevant facts have been discussed in Monfries v The Queen [2014] ACTCA 46, but in the context of a much more serious offence of dangerous driving causing death.

17.     Nevertheless, some of the factors identified are relevant to the less serious but still serious offence to which Mr Lyons has pleaded guilty. Thus, it appears that the driving seems directed at colliding with the first victim. Mr Lyons was, as shown later, clearly well intoxicated by illicit drugs, perhaps intensified by the consumption of alcohol. Despite this, the driving at the first victim seems deliberate and even targeted, despite the prior erratic driving. It clearly put the victim at risk and must have been completely terrifying for her.

18.     Mr Lyons says that he was heavily intoxicated when offending. He does not challenge the accounts of the offending that were given by the victims. He says that the offending was compulsive, which is not inconsistent with the Statement of Facts. He recalls

drinking “a few cans” and taking drugs before the offending. He says that the reaction

he had to the drugs was unusual, even for him. He has a suspicion that either the drugs or drinks were adulterated with some substance he does not usually take. This is supported to some extent by the fact that the bizarre behaviour continued when he first appeared in court, to the extent that the proceedings had to be adjourned to the next day.

Subjective Circumstances

19.     Two Suitability Assessment reports, a Drug and Alcohol Treatment Assessment report dated 4 December 2020, and a Drug and Alcohol Sentencing List Suitability Assessment report dated 7 December 2020, were tendered as part of the Crown's

Sentencing Tender Bundle, along with Mr Lyons’ criminal history. A letter from Dean

Ryan, Social Health Officer of Winnunga Nimmityjah Aboriginal Health and Community Services Ltd, was also tendered. As there was no objection to the tender of all these documents, nor challenge to their contents, I admitted them into evidence and from them make the following findings. There were some differences in the recollections reported to the makers of the two reports, which has led to some uncertainty about certain details.

20.     Mr Lyons was born 29 years ago into an Aboriginal family belonging to the Yuin and Wiradjuri tribes. He has two siblings. He was raised in Sydney, where he lived until his parents separated when he was five or six years old. His mother then relocated to Canberra and he came here with her. He has lived here since then, apart from a relatively short period in Sydney. Until that time, his family life had been marred by family violence and drug abuse. He maintained contact with his father and when his mother arranged for his uncles to discipline him at age 13 with physical punishment because of his behavioural issues, with which she found it difficult to cope, he became angry and ran away to live with his father.

21.     He appears to have only stayed briefly with his father. He began drinking and using illicit drugs with his father, whom his mother suggested was not a good role model. He moved out at some stage, when it is suggested that his father wanted him to return to Canberra due to behavioural concerns. He would not do so and instead lived with his friends. This was not very successful and he had periods of homelessness [redacted for legal reasons].

22.     Mr Lyons attended school to Year 7. Although he obtained average grades and was popular with his peers and excellent at sport, his school years were impacted by his behavioural issues, being suspended due to behavioural concerns. He later completed Years 8 and 9 in juvenile detention. Since then he has gained a Certificate III in Fitness. He has had very limited employment. When he was 17, he obtained a casual position for four months, but has been unemployed since then.

23.     Mr Lyons has a child, now five years old, who has been in the care of his paternal grandmother since birth. Mr Lyons first used alcohol, cannabis and methamphetamine when he was 13, apparently with his father. He drank quite regularly between 16 and 18, but has recently reduced the quantity he drinks. His use of cannabis became quite regular between age 18 and 20. He still uses it, though not since he has been in custody, and wants to give it up. His use of methamphetamine grew to regular use by age 18, smoking and injecting it until he was using between 0.1 to 0.5 grams daily, which he has been doing so for the past year.

24.     He has experienced periods of drug induced psychosis from its use. His use of MDMA or ecstasy has ceased, his last use being about three years ago. Mr Lyons' use of cocaine commenced when he was 18, but was limited due to scarcity and affordability and his last use was three or four years ago. He first used heroin in his early twenties, and by his mid-twenties, was using regularly, injecting it intravenously, and has been using up until about two weeks ago. He used to overdose in the past and before being in custody this time, was using daily, though that is a little uncertain from the material before me.

25.     He has good physical health, though some toothaches may need attention. He has had experiences of Drug Induced Psychosis, as I have said, but no ongoing psychotic features. His records reflect Cluster B personality vulnerabilities which are evident in a history of threats and aggression. He says, as I suppose most who use aggression

to achieve their ends, that it is used for “good reason”. There is no good reason for the

use of aggression, even when someone sees people as not doing what they want and what they think they should. Some of his outbursts have required Corrections officers to deescalate. This is the most concerning of a number of concerns expressed about his suitability for rehabilitation.

26.     He has been commenced on antidepressant medication and is awaiting approval for the use of Buvidal. Mr Lyons has had some drug treatment. He has been on opioid maintenance treatment, but this has stopped due to his non-compliance with dosing policy and abuse and threats to staff. He has also expressed an intention to cease using and returning to drug use when released from custody. When he was 19 years old, he completed approximately eight weeks of programs at Karralika Therapeutic Services. He later attended Weigelli for about six or seven weeks, before being discharged due to an altercation.

27.     Mr Lyons has a long and undistinguished criminal history [redacted for legal reasons]. As an adult, he has committed 38 offences, including a number of regulatory traffic offences.

28.     There have, however, been offences of robbery and offences of possession of a knife and of possession of an offensive weapon, and five offences of common assault and four of damage to property. These are of concern. He has been convicted of one other offence of assault occasioning actual bodily harm and one of intentional wounding. His record of violence is concerning. He has 13 offences of dishonesty, including one offence of aggravated robbery, one of robbery, one of aggravated burglary and four of dishonestly dealing with a motor vehicle without consent, either taking or riding in it.

29.     It is not an impressive record and it reinforces that violence is an issue with him. He has been in and out of prison since 2010. He has also breached orders in the community on at least five occasions. He was arrested on 28 September 2020 and has remained in custody since then, a total of 78 days. He has some support from the Winnunga Nimmityjah Aboriginal Health and Community Services Limited, where the Social Health Team has been working with him there and at the Alexander Maconochie Centre. Mr Lyons has experienced engaging with them and has expressed disappointment at being back in custody.

30.     His connection with his culture is, however, somewhat limited but could benefit from some more attention. Mr Lyons has been assessed as suitable for admission to Canberra Recovery Services and its residential rehabilitation program would provide him with an ACT address for about nine months. His uncle has agreed to allow him to reside with him in Canberra. There are some difficulties with that as it is a property of ACT Housing and Mr Lyons has currently no permission to reside there. His counsel submitted that his uncle has not, in fact, applied for the relevant permission and that although applications are not automatically approved, there is nothing to suggest that Mr Lyons, following successful rehabilitation, would be prohibited from residing there. His uncle, formerly a user of drugs, is now abstinent and caring for his infant son.

Conditional Liberty

31.     On 16 April 2020, Mr Lyons was convicted of common assault, for which he was sentenced to three months' imprisonment, immediately suspended with a Good Behaviour Order for 12 months, including a probation condition. Mr Lyons was dealt with for a number of other offences at the same time which arose out of the same event.

32.     On 17 August 2020, Mr Lyons was convicted of a charge of minor theft which he had committed on 7 May 2020, only 21 days into the 12 month Good Behaviour Order. He was released to the rising of the Court for that offence. On the same day, he was sentenced for being an unlicensed driver. The sentence for the charge of minor theft breached the Good Behaviour Order and the learned Magistrate cancelled the Order and re-sentenced Mr Lyons to 45 days' imprisonment, which he also suspended for 45 days, and imposed a Good Behaviour Order. I have no reasons for the basis for that particular sentence. The conviction which I will enter on his plea of guilty to the current offences will breach that Order.

33.     As explained in R v Mathews [2020] ACTSC 364, this has two consequences. The first is that it is an aggravating feature which I must take into account when sentencing. The second is that I must deal with the breach. Because this was a Good Behaviour Order made on a suspended sentence, the range of options are set out in s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), which requires me to cancel the Order and either impose the original sentence or re-sentence Mr Lyons.

34.     I had a Statement of Facts for this offence presented to the learned Magistrate and a copy of the Court Duty Report, both of which were used in the proceedings. I had also a copy of the Pre-Sentence Report used in the original proceedings. These were part of the Crown's Sentencing Tender Bundle which was admitted without objection or challenge to its contents. I note the following findings from that material.

35.     The events are in a relatively small compass. Mr Lyons was at the home of two of his cousins and with one of them. The other came home shortly afterwards. Mr Lyons, who was under the influence of illicit drugs, accused that cousin of having his car keys,

which his cousin denied. Mr Lyons is said to have “just … snapped” and punched his

cousin twice to the right side of his face, which caused him immediate pain and disgust. Though not relevant directly to this offence, Mr Lyons then left and picked up a rock from a nearby garden and started smashing the windows of his cousin's vehicles. They, in turn, proceeded to smash the windows of Mr Lyons' car. Mr Lyons then threatened his cousin with another rock. Police arrived soon after.

36.     The Pre-Sentence Report did not include much of any material that was not available to me from the Suitability Assessment reports referred to above (at [19]). The Court Duty Report simply recorded that Mr Lyons had failed to attend for preparation of that report, but it appears that the Magistrate proceeded nevertheless. In R v PM (No 2) [2015] ACTSC 358 of [20]-[22], I set out the factors relevant to a consideration of whether to impose a sentence or to re-sentence, as I could do. I do not need to set them out here.

37.     While it is accepted that Mr Lyons had completed all but three days of the Good Behaviour Order, it is an odd sentence for an offence committed so soon after the imposition of the original Good Behaviour Order. Without any reason or explanation for that sentence, it seems to me that Mr Lyons is still in the position of having failed to comply with the Good Behaviour Order, at least in spirit, if not technically and legally, which was originally for 12 months.

38.     Mr Lyons does not seem to have achieved much by way of rehabilitation and the current conduct, while dissimilar to the minor theft, is identical to the offence for which the Good Behaviour Order was originally made, namely the assault. The breaching offences on this occasion are very serious offences. I have had consideration, as noted above, to the facts for which Mr Lyons was originally sentenced, though I did not have details of the facts of the minor theft offence. I am not satisfied that it is that offence which is, in the circumstances, relevant.

39.     Clearly, Mr Lyons has continued to use drugs, which clearly causes him to continue to offend and the fact that he has already been sentenced for a breach shows that he is aware of the consequences of a breach. I do not have a clear view of the understanding that Mr Lyons may have of his obligations under the Good Behaviour Order, but it seems to me that the fact that he has already been sentenced for a breach, he is highly likely to have been made aware of them, at least so far as the commission of further offences is concerned. In my view, I should cancel the Order and re-sentence Mr Lyons; not by restoring the original sentence, but by requiring that it be served rather than suspended.

Sentencing Practice

40.     The Sentencing Act, in s 33(1)(za), requires a court sentencing an offender to have regard to current sentencing practice. I have explained, in R v Matthews, what that means and how it may be approached. So far as the offence of assault occasioning actual bodily harm is concerned, there are 111 cases, perhaps more, that have dealt with it in the Supreme Court, as recorded in the ACT Sentencing Database. It is, of course, only records of a bare range, and does not distinguish between important factors such as whether there was a plea of guilty, prior offending, or the seriousness of the offence. Nevertheless, it has some, though quite limited, value.

41.     Of the offences, just over half were sentences of immediate imprisonment. Another nearly a third received wholly or partly suspended sentences of imprisonment. The length of sentences ranged from 4 months (1 sentence) to 40 months (1 sentence), with 36 per cent between 7 and 12 months and 26 per cent between 13 and 18 months. Given the number of decisions, even accepting that many of the sentencing remarks are, regrettably, not linked to the sentencing statistics, it has not been possible to interrogate them all. I rely, however, on what I have set out above about the relevant factors elsewhere in these reasons.

42.    There were, however, three decisions which the Crown submitted would be of assistance in assessing an appropriate sentence. They are, of course, not precedents. The first was R v Potts, where Mr Potts was a detainee in the Alexander Maconochie Centre who assaulted another detainee. He was charged with a number of other offences. This offence was based on him striking a Corrections officer in the face as the officer attempted to get through a cell door. The officer sustained only minor facial injuries. There was a particular issue of the setting of this case to which I have referred to above. The subjective features of Mr Potts were somewhat more serious than those of Mr Lyons.

43.     The second was R v Johnson [2019] ACTSC 179. In that case, Mr Johnson struck the victim in the head twice, once inside a nightclub and once outside, where the latter assault left the victim unconscious. The sentence followed a trial, but where Mr Johnson was charged with a more serious offence and offered to plead to this offence on the second day of the first trial, in which the jury could not agree on a verdict. The

victim did not appear to be vulnerable. He had a criminal record described as “not extensive”. The Crown did not oppose the imposition of a wholly suspended sentence,

which was of eight months' imprisonment. I find it difficult to compare this case with
the current case.

44.     The third was R v Hawker [2020] ACTSC 79, where the victim was 72 years old with mobility issues. Mr Hawker had visited the victim and asked if he could borrow money. When he was refused, he became aggressive and the victim backed away, falling over. Mr Hawker then punched him in the face. The injuries seem not dissimilar but perhaps less serious than those in this case. Mr Hawker had an extensive criminal history, including at least 10 convictions for assaults. He was sentenced to imprisonment for 12 months and 15 days.

45.     As to the offence of common assault, just over half were, according to the available data from the ACT Sentencing Database, dealt with in the Supreme Court with a sentence of full-time imprisonment from 7 days to 43 months. The majority are in the range of 7 days to 6 months, but over a quarter are of 7 months to 12 months and 3 of the 29 were 3 years or more.

46.     As to the offence of dangerous driving, the data available from the ACT Sentencing Database notes that nearly all offences in the Supreme Court were dealt with by imprisonment, with two wholly or partially suspended. All periods of imprisonment were for 12 months or less.

47.     From a brief perusal of those sentencing remarks that were available, none had much similarity to this offence.

Consideration

48.     In order to give context to the sentencing process, the Sentencing Act sets out the purposes of sentencing in s 7(1), to which a court should have regard. In this case, the seriousness of the offences requires that there be some significant element of punishment, given the violence involved and the terror that it must have at least caused to the first victim, the pain and injury caused to the second victim, and the disgust caused to the third victim. It is also relevant to have regard to general deterrence.

49.     In this case, Mr Lyons' criminal history suggested that specific deterrence is also important. Violence leaves victims physically and mentally injured and recognising that harm is very important, as is the need to protect the community. The dependence of Mr Lyons on illicit drugs also suggests that, if it can be achieved, rehabilitation is important, especially as that will protect the community (Hogan v Hinch [2011] HCA 4;

243 CLR 506 at 573; [32]). Mr Lyons pleaded guilty at a very early stage, namely at the

third mention, and this is accepted by the Crown as showing significant utilitarian value.
The evidence for the offences was, nevertheless, quite overwhelming.

50.     Mr Lyons was also affected by drugs. Indeed, that appears to have caused him to behave in the way that he did. It is significant that he commenced using drugs when he was quite young, 13 years old, and this was at a time when his capacity to consent would have been very limited. It is significant too that it was his father who introduced him to the use of drugs, an authority figure he would be used to trusting, especially as he sought him out in effect for protection. I have discussed the relevance, to sentencing, of the circumstances under which a person becomes an addict in R v Forrest (No 2) [2017] ACTSC 83 at [130]-[133], and apply what I there said.

51.     A further matter is the childhood disadvantage that Mr Lyons has suffered. This is a matter that requires proper attention in sentencing. I set out the principles in R v Crawford (No 1) [2020] ACTSC 245 at [86] as follows:

… the High Court accepted in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 that

childhood deprivation could explain subsequent behaviour such that the offender's moral

culpability “may be substantially reduced”: at [44]. The principles of the application of this
principle were recently helpfully summarised by Loukas-Karlsson in R v KN [2020] ACTSC
218, at [98], as follows:

In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:

(a)	the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b)	the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c)	the application of the Bugmy principles is not discretionary: Irwin at [3].

52.     Thus, the continuing effect of his disadvantaged upbringing must be taken into account in the sentence to be imposed.

53.     There are, of course, multiple offences. They are separate offences and it is important that I set out an appropriate sentence for each, as required by the High Court: see Pearce v The Queen (1998) 194 CLR 610 at 623-4. Nevertheless, they were all committed immediately after one another and within a relatively short space of time. They could, therefore, be considered as a course of conduct. Thus, the high degree of intoxication which has influenced his aggressive behaviour is part of the background to explain (though of course in no way justifies), his behaviour on that day.

54.     This is often a basis for requiring a higher degree of concurrency in the sentences to be imposed (see for example R v Carmody (No 3) [2017] ACTSC 60 at [88]). I do not consider that this would be completely appropriate in this case, and neither the Crown nor Mr Lyons in each of their submissions submitted to the contrary. Indeed, the Crown submitted, correctly in my view, that there must be sufficient accumulation between the

sentences so that each victim is not rendered a “meaningless statistic” (R v Scott [2003]

VSCA 55 at [25]); thus, the cumulation must be sufficient to signify the gravity of each offence and, of course, the effect each had on the victim. This is particularly the case, it seems to me, in cases of personal violence. As Elkaim J put it in R v Jacka [2017] ACTSC 225 at [27]:

Where there are multiple offences, it can be difficult to avoid an overly long head sentence if accumulation of sentences is applied. On the other hand, the offender must be seen to be punished for each of the offences he has committed and the victims must be reassured that the offences committed against them individually produce a punishment that can be related to the suffering they have endured.

55.    In this case, I did not, regrettably, have any Victim Impact Statements. That is unfortunate in such a case, for the impact of such offences can have particularly individual effects on a particular victim and it is important to recognise this in each case. Nevertheless, the Court can accept that the effects will have some significance and while in the case of the second victim, the physical effects are likely not to have lasted particularly long, and although there were no direct physical injuries in the other cases, the emotional and mental effects to each of the victims are likely to have been very significant and to have lasted for some considerable time.

56.     Nevertheless, I am also required to respect the principle of totality, and I have reviewed the length of the total sentence reached so as to respect that principle of totality and ensure that it reflects the total of the criminality convicted and not more than that, and that the sentence is not crushing and leaves the realistic prospect of reform and the hope of achieving the goals Mr Lyons will have for himself when he is released into the community. In order to achieve this, I have adjusted the cumulation and concurrency between the sentences.

His Honour then spoke to the accused:

57.     Mr Lyons, please stand.

58.     I convict you of assault occasioning actual bodily harm on 28 September 2020.

59.     I sentence you to 13 months' imprisonment to commence on 28 September 2020. Had you not pleaded guilty, I would have sentenced you to 16 months' imprisonment.

60.     I convict you of dangerous driving on 28 September 2020.

61.     I sentence you to eight months' imprisonment to commence on 28 July 2021. That is to be cumulative as to five months on the sentence for the assault occasioning actual bodily harm. Had you not pleaded guilty, I would have sentenced you to 10 months' imprisonment. I also disqualify you from obtaining or holding a driver licence for six months from today.

62.     I convict you of common assault on 28 September 2020.

63.     I sentence you to six months' imprisonment to commence on 28 January 2022; that is, to be cumulative as to four months on the sentence for dangerous driving. Had you not pleaded guilty, I would have sentenced you to eight months' imprisonment.

64.     I find that you have breached the Good Behaviour Order made on 17 August 2020 and cancel the Order.

65.     I confirm the conviction for the offence of common assault on 17 December 2019.

66.     I re-sentence you to that offence to three months' imprisonment to commence on 28 June 2022. That is to be cumulative as to two months on the sentence for common assault on 28 September 2020. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.

67.     Mr Lyons, please be seated.

68.     That is a total sentence of 24 months' imprisonment.

69. I notice that Mr Lyons is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. I am also satisfied that he is likely to be a resident in the ACT for the next two years. Accordingly, he is eligible for a Treatment Order.

70.    I have carefully read the Pre-Sentence Report dated 21 October 2019, and the Suitability Assessments referred to above. I have carefully considered the recommendations. I note that in one of the Drug and Alcohol Suitability Assessments, Mr Lyons is recommended as unsuitable for a Treatment Order. The other Suitability Assessment recommends that he is suitable.

71.     The reason for the recommendation for unsuitability is based on the following matters: Mr Lyons is unable to identify suitable accommodation, he has a lengthy criminal history with a pattern of re-offending and a substantial history of non-compliance with community-based orders.

72.     As to the matter of accommodation, I am satisfied that if Mr Lyons is mandated to reside in Canberra Recovery Services for some of the Treatment Order, he will remain in Canberra for at least nine months and that should be sufficient time to take the necessary action to secure permission to access his uncle's residence. Accordingly, I am satisfied that this is no longer an indication of unsuitability.

73.     As to the criminal history, I am not satisfied that a lengthy history of offending is in itself a disentitling matter for a Treatment Order. Indeed, the very nature of drug dependence is that it will lead to continuing offending and, of course, much of this will be re- offending. That he has breached community-based sentencing options is of more concern. I note that a number of breaches of such orders are on his criminal record, and no doubt there will be infractions and difficulties not sufficient to have been recorded as a breach.

74. Much of this must be related to the aggression and violence of Mr Lyons. That this is likely to have been a consequence of his upbringing does not diminish the concern in this context. This is, of course, an indication of unsuitability in Item 4 of Table 46K, in s 46K of the Sentencing Act. Nevertheless, I am authorised to make a Treatment Order, notwithstanding such a recommendation (s 80T(5) of the Sentencing Act). I must also consider the indication of unsuitability in this table, but am not bound by them (s 80T(4) of the Sentencing Act).

75.     This is not an easy matter to decide. It appears that Mr Lyons may be ready to address his drug dependency and is amenable at least to a period of residential rehabilitation. That seems to me to be an opportunity that should be taken, especially as his drug use is increasingly exhibiting itself in acts of personal violence, which is inimical to a peaceful and safe society. While it is a real possibility that his aggression and what I see as a degree of self-centredness, requiring his own way and using aggression to get it, will make the rehabilitation difficult and means that there is a real risk of failure, to some extent a risk of failure is true in every case and, as I am finding out, happens rather too frequently.

76.     Nevertheless, the readiness for change that he has expressed and the real chance, though not a guaranteed opportunity, to stem his continued criminality needs to be accepted and built upon now if it possibly can. I recognise that his prospects of rehabilitation are guarded, but I am prepared to try and achieve that by making a Treatment Order. I have already indicated that I would do so, and I have indicated my

reasons for it despite a recommendation of Mr Lyons’ unsuitability for a Treatment

Order (s 80T(6)(b) of the Sentencing Act).

77.     Finally, I note that although I have commenced the sentence of imprisonment from 28 September 2020, which period to date has now been served, and that the sentence must be suspended from today, this does not prevent Mr Lyons from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1).

His Honour then spoke again to the accused:

78.     Mr Lyons, please stand again.

79. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you from today to 27 September 2022, in respect of the offence of assault occasioning actual bodily harm on 28 September 2020, the primary offence for which I have convicted and sentenced you.

80.     I extend that Order to the offences of dangerous driving and the two offences of common assault for which I have convicted you, all being associated offences. I note that I have recorded convictions for the primary offence and associated offences and imposed sentences, and that the convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order.

81. I suspend the sentence of 24 months from today, being the total of the sentencing for the primary offence and associated offences, until 27 September 2022, under s 80W of the Sentencing Act. That is the custodial portion of the Treatment Order.

82. For the treatment and supervision part of the Drug and Alcohol Treatment Order, I require you to comply with the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order and complete the residential rehabilitation program conducted by Canberra Recovery Services at Fyshwick ACT, and such other programs of treatment and case management required by the Treatment Order Team from time to time, or as ordered by the Court, including counselling, urinalysis, medical treatment, and such other treatment or programs as may be required from time to time.

83.     I direct you to travel directly to Canberra Recovery Services today and admit yourself to the residential program conducted by that agency by 2 pm today, to remain there until you have completed the program, and obey the rules of the facility and of the program and any directions of the officer in charge of the facility.

84.     I direct that you not leave Canberra Recovery Services until you have completed the program, or by leave of the Court, and that if you leave or are discharged from the program before then, you present yourself to ACT Corrective Services by 4 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed.

85.     I direct that you to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means.

86.     I direct that you attend Court on 18 December 2020 at 11:30 am.

87.     Mr Lyons, that is the legal part of the Order. You have been around enough to probably understand quite a lot of what I have said already, but it is in legalese and I am now obliged to explain it to you, though, no doubt, your counsel will explain it to you carefully.

88.    I have determined that these offences, which were fairly awful offences in the community, together with the earlier offence of common assault, justify a two-year period of imprisonment. However, in this case, I am not going to require you to serve that immediately. You have served part of it since 28 September 2020, but you will be released today to go directly to Canberra Recovery Services and admit yourself to that program. That program is of nine months. I know you are uncomfortable with that, but that is the reality. That is the choice you have.

89.     You are to stay there and complete the program. If you leave or are discharged from the program, then you are to return to Corrective Services by 4 pm the next day. If you do not do that and run away and hide your head, then the likelihood is almost certainly that you will be sentenced to the rest of the two years' imprisonment. There are no guarantees. There may be particular circumstances and so on, but that is the likelihood. If you do present yourself, it depends on why you breached and how you breached and what the options are for me. Honesty is really important for this kind of order and telling me what the problem is, admitting to using of drugs or anything, and we can try and solve it. The solution may be to send you back to prison for some period from time to time, or for the serving of that sentence with a non-parole period of whatever. I do not guarantee that.

90.     You have got to use your best endeavours. You have been dependent on drugs since you were 13. Experience shows that that is a pernicious addiction that will take a long time to address. You are a very self-confident man. That is a good thing, but it also

can be very problematic because you will say “I can do it” and you might be

overconfident about that. You need to really listen to what the people who are in this
game and who know how it works are saying.

91.     The other thing that is really important is that you have got to start addressing your violence and aggression. That would be almost certainly a breach of this Order. I am not saying one occasion of aggression will result in that, but what I am saying is one occasion of aggression and you get away with it means it will happen again and again.

92.     I have given you a chance which a lot of people would not have given you. You make use of it and do what you can. Do not be overconfident. Put your heart and soul in it and you will get through it and you will then be in a position to get into the community, live a life that you want to live, not in and out of gaol where other people determine what you do, but a life where you can determine what you want to do. You can reconnect with your community, if you want to do that, and explore your culture with Dean Ryan, as he is keen to help you do and others.

93.     I wish you well. I hope it works, but you know what the consequences are. You have been around long enough to know what that is about. And so I will see you on Friday and frequently. But there are pretty limited rules and pretty limited ways for you to negotiate an alternative to what is now proposed, and you need to understand that and start to come to terms with it, all right?

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 15 February 2021