R v McGrail
[2019] ACTSC 384
•14 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McGrail |
Citation: | [2019] ACTSC 384 |
Hearing Dates: | 23 August 2019, 7 November 2019 |
DecisionDate: | 14 November 2019 |
Before: | Burns J |
Decision: | See [37]–[39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – recklessly inflicting grievous bodily harm – incident captured on CCTV – some degree of pre-meditation – guarded prospects for rehabilitation – consideration of individual and general deterrence |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 |
Parties: | The Queen (Crown) Matthew Shaun McGrail (Offender) |
Representation: | Counsel L Sutton (Crown) J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Edmonds Solicitors (Offender) | |
File Number: | SCC 145 of 2019 |
BURNS J
Matthew McGrail, on 20 June 2019 you entered a plea of guilty to a charge of recklessly inflicting grievance bodily harm (CAN 6083/19) on LC on 26 May 2019. This is an offence contrary to s 20 of the Crimes Act 1900 (ACT) and carries a maximum penalty of 13 years' imprisonment.
On 20 June 2019, you were committed for sentence to this Court and you have subsequently adhered to your plea of guilty that you entered in the ACT Magistrates Court. I accept that your plea of guilty was an early plea which had significant utilitarian value. I will reduce by approximately 25 per cent the otherwise appropriate sentence for this offence in order to reflect your early plea of guilty.
The facts
At about 12.55 pm on Sunday, 26 May 2019, the victim was standing in Garema Place, in the central shopping district of Canberra. He was talking with a small group of people. At that time, the victim had an injured right leg and was supported by crutches.
A short time later, you, your mother, Michelle McGrail, and another male,
Matthew Thompson, approached the group and greeted its members in a friendly fashion. You stood on the victim's right-hand side and you removed your jacket and placed it on a concrete block. You looked around, then walked up to the victim who was engaged in conversation with someone else.
Without warning, you punched him forcefully to the right-hand side of his head with a closed right fist. His head was knocked sideways from the impact, but he managed to turn and try to get away. As he did, you punched him twice more to the head causing him to stumble, drop his crutches and fall to the ground. As he lay on the ground, you stomped down on his head twice with your right foot and once with your left foot. You then kicked the victim to the head three times with your right foot. By that time the victim was unconscious. Your mother, at that point, stepped in and ushered you away and you departed the area a short time later.
The incident was captured on Closed Circuit Television (CCTV). Members of the public, including young children, were in the immediate area at the time of this assault.
Police were called to the scene and arrived shortly after 1 pm. On arrival, they observed the victim lying on the ground. Several people were assisting him. Police observed that his right ear, was covered in blood and there were numerous abrasions and bruises on his face that appeared fresh. His crutches were lying on the ground next to him.
Police requested an ambulance and they provided the victim with basic care. They tried to speak to him to ascertain the extent of his injuries and how they had occurred. The victim lapsed in and out of consciousness and was only able to provide one-word answers. Witnesses told police that before you left the area, you had said words to the effect of, “You don't know what this man has done to my family”.
The victim was treated by ambulance officers at the scene and then taken to
Canberra Hospital where he was admitted to the Intensive Care Unit in a serious condition.
A report from Dr Jane Van Diemen of the ACT Clinical Forensic Medical Services was tendered by the Crown. That Report notes that the victim arrived at the
Canberra Hospital Emergency Department via ambulance at 2.37 pm on 26 May 2019. He was triaged as a Category 1 patient and an internal trauma code was activated. Patients who are triaged as a Category 1 have an immediately life-threatening condition and require immediate and simultaneous assessment and treatment by the
Emergency Department staff.
Subsequent assessment of the victim revealed that he had suffered an undisplaced right-sided occipital skull fracture, right occipital skull haematoma, multiple facial lacerations and multiple facial abrasions.
He was admitted to the Intensive Care Unit and was placed in an induced coma from 26 May 2019 until 27 May 2019. He underwent radiological investigations, as well as receiving opiate analgesia for the management of moderate to severe pain. The skull fracture was managed conservatively and did not require surgery.
As a result of his injuries and subsequent hospital admission, the victim developed a complication being aspiration pneumonia with associated collapse of his left lung and left-sided pleural effusion. The victim was released from hospital on 30 May 2019.
In her Report, Dr Van Diemen states that injuries to the head have the potential to be very serious. They can result in damage to the underlying structures, including bone, muscles, nerves, blood vessels and the brain. Injuries to the head can result in either temporary or permanent damage. She noted that the victim would experience permanent scarring from his facial laceration injuries and may have other ongoing consequences including psychological sequelae.
At the sentence hearing, your Counsel informed me that as at 26 May 2019 you had a grudge against the victim. The two of you had previously shared a cell at the
Alexander Maconochie Centre (AMC) and you asserted that he had made life very difficult for you while you were in custody. No further details were provided, and you did not give evidence.
Further considerations
I accept that there was not a lot of premeditation prior to this offence. Your meeting with the victim had not been prearranged and was purely coincidental. Having seen the CCTV recording of this incident, I am satisfied that there was some degree of premeditation demonstrated by you taking off your coat and placing it on the concrete block prior to moving towards and striking the victim.
In assessing the objective seriousness of the offence, I also take into account that it occurred in a public place in the middle of the day and in the presence of a number of members of the public, including small children. There were multiple applications of force to the head of the victim. It is also important to recollect that the victim was physically incapacitated at that time, requiring the use of crutches. This significantly reduced his ability to be able to defend himself or to move away from you. In addition, you attacked the victim when his attention was directed towards another person so that he had no warning of your attack and could not defend himself.
While the injuries inflicted on the victim do not fall into the most serious category of injuries that would constitute grievous bodily harm, they were, nevertheless, serious and life-threatening.
It is an aggravating circumstance, calling for greater punishment, that you were on parole when you committed this offence. On 2 December 2016, you were sentenced by myself in this Court to four years' imprisonment from 2 March 2016 to 1 March 2020 with a non-parole period of two years. Subsequently, on 20 December 2017, you were sentenced in the ACT Magistrates Court to three months' imprisonment from
2 January 2020 to 1 April 2020. Your non-parole period was not interfered with by the ACT Magistrates Court. You were granted parole on 9 May 2018, with your sentence due to expire on 1 April 2020.
At the sentence hearing, your Counsel suggested that you were under the influence of alcohol at the time of this offence. I note that you also said that to the author of the
Pre-Sentence Report. I can, however, see no indication of any significant intoxication in your presentation in the CCTV footage. In any event, self-induced intoxication does not entitle you to any significant leniency in sentencing for this offence. This was a brazen and vicious attack on an unsuspecting and vulnerable victim causing
life-threatening injuries. I would assess the objective seriousness of this offence as in the upper end of the mid-range of such offences.
Subjective features
You have a prior criminal history. The offences for which you were sentenced by myself in 2016 were sexual offences. The offence for which you were sentenced in the
ACT Magistrates Court in December 2017 was an offence of common assault. You have other convictions recorded against you going back to 2013 but no other offences of violence. Your criminal history disentitles you to any significant leniency in sentencing for this matter.
A Pre-Sentence Report dated 22 August 2019 was prepared for the sentence hearing. I note that you are 28 years old and you have been known to ACT Corrective Services since November 2013 when you were made subject to Good Behaviour Orders for driving offences. Since that time, you have been subject to several community-based orders and demonstrated poor compliance with the conditions of those orders. It is pleasing to note that since being remanded in custody, you have demonstrated appropriate behaviour and you have been described as being polite and cooperative during the preparation of the Pre-Sentence Report.
The Report states that you had an unsettled childhood, being mainly raised by your grandparents. Your mother had a negative impact upon your life due to her illicit substance use. You reported having limited contact with your father, however, you stated that you are working on that relationship and you speak approximately once every month. You stated that you have a close relationship with your mother, despite her ongoing use of illicit substances. You continue to have positive and supportive relationships with your grandfather and three aunts.
You reported having two children from a previous relationship with whom you have no contact. You stated that you began a de facto relationship, before being returned to custody, with a person you met while participating in a drug and alcohol rehabilitation program in mid-2018. You told the author of the Report that your partner has abstained from alcohol consumption for approximately six months and continues to be a support to you whilst in custody.
You reported having your own ACT Housing property which you are able to return to should you be released from custody. You indicated, however, that your preference would be to move in with your partner who has recently obtained her own privately rented property.
You completed Year 10 education after experiencing a period of suspension due to consuming alcohol on school grounds. You reported substantial periods of employment after leaving school with the longest such period of employment being approximately seven years. I have no doubt that you are capable of obtaining and retaining employment in the community if you address your drug and alcohol addictions.
You also reported a history of problematic alcohol consumption commencing at
age 13 years. You stated that you would consume alcohol in binges, approximately once a month until you were 18 years of age, at which time you commenced consuming alcohol on a daily basis. You have achieved brief periods of abstinence, as well as participating in residential rehabilitation programs in the past, but you claim that you have never learnt to moderate your alcohol consumption and always consume alcohol to intoxication. As I said earlier, you told the author of the Report that you were under the influence of alcohol at the time of this offence.
You also reported a history of illicit substance abuse with your use of cannabis commencing when you were 14 years old. Your use of cannabis gradually increased until you were using cannabis daily prior to being incarcerated in 2015.
You commenced using methamphetamine at the age of 22 years, with your use of this substance gradually increasing over time until you were using it up to three times a week until you were incarcerated in 2015. You have, again, achieved periods of abstinence whilst supervised on community-based orders, but you lapsed into drug use and cannabis use before being remanded in custody on 30 May 2019.
You told the author of the Report that you did not recall the entire incident as you were under the influence of alcohol. The author of the Report stated that you demonstrated empathy towards the victim and expressed a willingness to participate in a referral to Restorative Justice. You acknowledged that your actions were unlawful and you accepted full responsibility for your behaviour. The author of the Report assessed you as medium to high risk of general reoffending, which could be reduced by you addressing your alcohol and drug addictions.
A letter from your partner was tendered on your behalf at the sentence hearing. She states that she met you 12 months ago and that you have been in a serious relationship for about six months. She states that she admires your directness and compassion for other people. She speaks of difficulties which have confronted you in your life since you were released from the AMC on parole in May 2018, and of the fact that she has never seen you behaving violently. Throughout the time that she has known you, you have attended drug and alcohol counselling at Directions and attended art therapy fortnightly. She also states that you regularly attended Alcoholics Anonymous meetings and Self-Management And Recovery Training (SMART) meetings.
She refers to the two of you engaging in healthy and appropriate recreational activity. She also states that you attempted to find employment before being returned to custody and there is some suggestion that you were on the cusp of being employed at that time. She continues to visit you at the AMC and describes you as being remorseful. She supports your plans of owning a horticulture business one day.
You also provided a letter from Directions dated 31 October 2018 which speaks of your attempts to address drug and alcohol abuse issues after being released on parole. I am satisfied on the basis of this material that in the period after you were released on parole, you made a real effort to address your drug and alcohol addictions. Sadly, it appears that you relapsed prior to the commission of the present offence.
It is difficult to assess your prospects for rehabilitation at the present time. I accept that you have a number of positive factors in your life which will assist in the process of rehabilitation. You have an ongoing stable relationship with your partner, as well as broad family support. You have the ability to obtain and retain employment. Your prospects of rehabilitation hinge upon your ability to consistently address your drug and alcohol addiction. To date, while you have made some progress, it has not been consistent and has been marked by relapse into addiction. I accept that you have prospects for rehabilitation, but they must be described as guarded.
Offences of violence cannot be tolerated in our community. The maximum penalty prescribed for this offence, being 13 years' imprisonment, is an indication of how seriously the legislation views violence resulting in significant injury. The dominant sentencing considerations are punishment and deterrence. In the present case, both individual and general deterrence are relevant. I must impose sentences designed to bring home to you and to others that violent conduct will be visited by real punishment.
Your parole was revoked by the Sentence Administration Board on 9 July 2019. At that time, you became liable to serve a further period of imprisonment of
1 year, 10 months and 23 days. Prior to your parole being cancelled, you had been remanded in custody on the present charge for 41 days. In determining the appropriate commencement date for the sentence which I will impose, I must also bear in mind the principle of totality.
Sentence
I record a conviction on this charge. My starting point is one of five years' imprisonment. I will reduce that to three years and nine months' imprisonment in order to reflect your plea of guilty. That sentence will commence on 9 July 2020 and expire on 8 April 2024.
This leads to an aggregate sentence of imprisonment of six years, ten months and seven days.
I will set a non-parole period of approximately 60 per cent of that aggregate sentence, such that I reset the non-parole period to expire on 1 February 2022.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Sophie Hewitt Date: 28 April 2020 |
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