R v Maafu

[2020] ACTSC 328

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Maafu

Citation:

[2020] ACTSC 328

Hearing Dates:

14 October 2020; 8 December 2020

DecisionDate:

8 December 2020

Before:

Elkaim J

Decision:

See [27]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – occasioning grievous bodily harm – one punch attack – guilty plea

Legislation Cited:

Crimes Act 1900 (ACT) s 20
Crimes (Sentencing) Act 2005 (ACT) s 6, 7, 10, 33

Cases Cited: 

R v Lacey [2020] ACTSC 241
R v Myles [2017] ACTSC 194
R v Sharma [2016] ACTSC 180

Parties:

The Queen (Crown)

Nimilote Utumoengalu Maafu (Offender)

Representation:

Counsel

K Marson (Crown)

T Trotter (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid (Offender)

File Number:

SCC 179 of 2020

ELKAIM J:

1. On 11 August 2020 the offender pleaded guilty in the Magistrates Court to recklessly inflicting grievous bodily harm (CC1776/2020), contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for this charge is 13 years’ imprisonment.

1. On the same day, the matter was committed to the Supreme Court for sentence.

1. The matter first came before me on 14 October 2020 but was adjourned at the request of the offender, and with the consent of the Crown. The offender had requested certain documents from the Crown which had yet to be provided. In addition the offender wished to partake in restorative justice before final sentencing. I made orders to facilitate that process. The restorative justice attempt has not come to fruition.

1. Another issue that was raised was whether or not an assessment of suitability in the pre-sentence report could be regarded as compliance with the need for assessment for an Intensive Corrections Order (an ICO). The parties took some time to consider this issue and then informed me that the assessment in the pre-sentence report was sufficient to allow consideration of the making of an ICO.

1. This is yet another case in which Mooseheads is involved. An uncommon number of cases come before the courts in which Mooseheads has featured. Extraordinarily, crimes seem to be committed on the way to Mooseheads, at Mooseheads, or having left Mooseheads. I do not know why this is so.

1. The offence occurred at about 2am on 16 February 2019. A Mr Darren Sanson was standing in the queue awaiting entry to Mooseheads.

1. I have watched the CCTV footage of the assault. For no apparent reason the offender walks directly up to Mr Sanson, who is standing in the entry queue, and slaps him across the face. This is immediately followed by a punch to the right side of Mr Sanson’s face.  Mr Sanson fell backwards by reason of the force behind the punch.

1. Presumably well versed in events of this type a member of the security staff at Mooseheads shepherded Mr Sanson from the scene and provided first-aid. He also called the police.

1. The following day Mr Sanson went to Canberra Hospital. Examination revealed a fractured mandible, ultimately requiring surgery including the insertion of a metal plate and three screws. It was also necessary for two teeth to be extracted.

1. There is a victim impact statement from Mr Sanson. He describes the surgery that he endured as well as a subsequent infection and a need to return to hospital. He had recently come to Canberra to take up an employment opportunity. He could not do so. He has needed counselling. He ends his statement in this way:

This guy who ever he is does not realise the affects of his actions on other people. I hugely struggled for a long time after what he had done to me and it affected every aspect of my life.

1. In a record of interview conducted on 2 June 2019 the police asked the offender why he had attacked Mr Sanson. He had a vague recollection of speaking to Mr Sanson earlier in the evening but otherwise provided no reason for his actions. He could not recall the conversation or whether it had involved any sort of argument. In other words this was yet another one punch attack characterised by alcohol, senselessness and stupidity.

1. Recently, in R v Lacey [2020] ACTSC 241, I said this, at [33]:

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.

1. Also, as in Lacey, I assessed the objective seriousness of the offence as above medium, noting once again 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.

1. The offender was born in 1989 in San Francisco. He is one of 10 siblings. He did not have an easy childhood because his father could not work and his mother’s employment took her away from the home, other than one day a week.

1. The offender came to Australia in 2009 seeking better opportunities. He married and there are two children of the relationship. He separated from his wife in March 2020.

1. The offender left school after Year 9 in order to contribute financially to the family upkeep. Most of his work has been as a concreter although he has had an assortment of other types of work.

1. Not surprisingly the offender has a history of binge drinking. This has apparently now reduced. He says he used alcohol to assist with mental health issues. He has suffered from anxiety and depression and is currently receiving counselling.

1. The offender has a minor criminal record which is not relevant here.

1. The authors of the pre-sentence report assessed the offender as suitable for an Intensive Corrections Order. They suggested that an ICO would target the offender’s mental health and alcohol and drug use.

1. The offender is entitled to a discount for his plea of guilty, which I assess at 25%.

1. The Crimes (Sentencing) Act2005 (ACT) is relevant here. Particular regard must be had to ss 6, 7, 10 and 33. Section 10 says a person should not be sent to prison except as a last resort. It is acknowledged here that a prison sentence is inevitable. The real question is the manner in which that sentence should be served.

1. The offender has asked for the imposition of an ICO. As already noted, he has been assessed as suitable for such an order. On the other hand the effects on the victim, the sheer senselessness of the crime and the need for public deterrence call for immediate imprisonment.

1. Three factors ultimately lead me to favour an ICO. The first is the essentially criminal free record of the offender. The second, which must be viewed together with the absence of a criminal history, is the need for rehabilitation. The offender is still a young man. He can become an alcohol fuelled predator of innocent victims or he can direct his efforts towards the benefit of society. Hopefully through an ICO he will take the latter direction. There is an early indication of the desire for rehabilitation in the offender’s letter to the Court and his continued attendance at an anger management course.

1. The third factor is the apparently genuine indication of remorse.

1. As has been pointed out by the Crown, there are matters, such as R v Sharma [2016] ACTSC 180 where a custodial sentence has been imposed. But there are other cases like Lacey where an ICO has been seen as appropriate. I think my approach in this case is consistent with the general approach currently being taken in the courts.

1. The offender has not spent any time in custody for this offence.

1. I make the following orders:

(a)For recklessly inflicting grievous bodily harm (CC1776/2020), the offender is sentenced to 18 months imprisonment (reduced from 24 months) to commence today and end on 7 June 2022.

(b)The sentence of imprisonment is to be served in the community by way of an Intensive Corrections Order.

(c)It is an additional condition of the Intensive Corrections Order that the offender undertake 240 hours of community service work within 12 months from today.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.

Associate:

Date: 8 December 2020