R v McIntosh

[2020] ACTSC 208

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v McIntosh

Citation:

[2020] ACTSC 208

Hearing Date:

29 July 2020

DecisionDate:

6 August 2020

Before:

Robinson AJ

Decision:

See [30]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – good prospects of rehabilitation – insight into offending – no criminal record

Legislation Cited:

Crimes Act 1900 (ACT) ss 25, 26
Crimes (Sentencing) Act 2005 (ACT) ss 35, 53
Criminal Code 2002 (ACT) s 45A

Cases Cited:

R v Alaragi [2020] ACTSC 77
R v Bui [2019] ACTSC 366

Parties:

The Queen (Crown)

Brett Thomas McIntosh (Offender)

Representation:

Counsel

H Roberts (Crown)

K Musgrove (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

McKenna Taylor (Offender)

File Number:

SCC 6 of 2020

ROBINSON AJ:

1. Brett Thomas McIntosh, the offender, has pleaded guilty to:

(a)One count of causing grievous bodily harm by an unlawful act, contrary to s 25 of the Crimes Act 1900 (ACT) (the Crimes Act); and

(b)One count of common assault, contrary to s 26 of the Crimes Act.

1. The maximum penalties for those offences are five years’ and two years’ imprisonment respectively.

1. The events the subject of the two counts took place on 11 July 2019 at Chifley, ACT. On the first count, the Crown alleges that the offender and a co-accused, Joshua Theobold, jointly assaulted Joseph Smith (the first complainant). I was told from the bar table that the co-accused is the subject of a yet to be executed first instance warrant for his arrest and has not been before the Court for that reason.

1. An agreement to plead guilty to these offences arose out of a criminal case conference held on 12 May 2020. A fresh indictment was filed to give effect to that agreement. The previously fixed trial dates of 31 August 2020 to 2 September 2020 were vacated.

1. The offender’s pleas were taken on arraignment on 18 May 2020.

1. After the offender’s arrest and prior to obtaining bail, the offender spent 165 days in custody in relation to these charges for which he will be given credit and which accounts, as the offender’s counsel points out, to approximately 5.5 months in custody.

Facts

Count 1

1. Mr Smith visited the home of Mr Schubert (the second complainant) to fix a car. As a gesture of gratitude, the second complainant’s daughter Kristel offered to buy Mr Smith some beer. The group travelled to Chifley to enjoy the beer. This was the residence of Christine Klohs, Kristel’s mother.

1. When they arrived at that residence, Mr Smith saw Christine, the offender and the co‑accused standing on the front grass. Christine and the offender came directly to Mr Smith’s door, opened it and pulled him out of the car. As they attempted to pull him out, the offender punched Mr Smith in the face three or four times.

1. Christine and the offender dragged Mr Smith onto the ground. Mr Smith held his arms over his face and head to protect himself. He felt himself being punched, kicked and hit by the offender. He heard the offender and Christine say, “You’re fucked. You’re fucking dead. You’re fucking dead cunt”.

1. Mr Smith tried to run towards a metre-high wire fence that led to an alley with a larger wire fence. The offender and the co-accused grabbed Mr Smith, threw him to the ground and kicked him in the face. Mr Smith felt his jaw break; he heard a loud crack and felt as if his jaw came out of his skin.

1. He was repeatedly hit, kicked, and punched in the face, back and ribs. After a while, someone yelled out, “Stop, stop. He’s had enough!”. The offender and the co-accused ran away from Mr Smith.

Count 2

1. The objective facts relevant to the second count can be stated succinctly. Mr Schubert asked the offender and the co-accused what had happened in regard to Mr Smith. The offender raised his right arm and slapped Mr Schubert in the left eye. Mr Schubert felt immediate pain. He was later taken to hospital by police.

Medical evidence

1. The photographic evidence shows Mr Smith as a man who has suffered a severe beating from blunt force trauma. Multiple abrasions and bruises to the head, with associated swelling to the right orbital area can be seen. Dr Thomas, a registrar at The Canberra Hospital in the specialities of Emergency Medicine and Forensic Medicine, reported on a fracture to the right mandible. It was the result of blunt force trauma. It required surgical procedure under general anaesthetic to repair.

1. The removal of six teeth also occurred, although the removal of all of these teeth could not be attributed to the offending. The complainant has reported experiencing impairment of sensation to his right jaw and chin and, in the doctor’s opinion, this may represent a long-term complication of his injury and subsequent surgery but it was not possible to determine this on the evidence available to him at this time. The doctor also reported that the blunt force trauma to the head may possibly lead to injury to the brain and can result in temporary or permanent damage including an end increased risk of Parkinson’s Disease and dementia later in life.

1. In the doctor’s opinion, the complainant may have permanent and long-lasting sequelae from his injuries, including the possibility of ongoing pain and discomfort, ongoing psychological sequelae following the experience of a traumatic event and temporary or permanent impairment of facial nerve function.

1. The Crown did not call any further evidence relating to the permanent impact from the offending, only providing evidence of the possibility of such long-term impact on the complainant. Neither was a Victim Impact Statement lead in evidence. I have regard to s 53(1)(b) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).

Subjective circumstances

1. The offender gave evidence at the sentencing hearing.

1. In his evidence, the offender explained that he had not met Mr Smith before the day in question. He was told by the co-accused that Mr Smith was supplying drugs to his mother, who had previous abused drugs. The offender also explained his belief that Mr Schubert had perpetrated family violence upon his mother.

1. The offender also gave evidence of his upbringing and his acquaintanceship with violence and drugs during that period of his life. He also gave evidence of his own alcohol and drug use and the family’s fiscal hardship.

1. It is clear that the offender has unresolved issues with alcohol which he has insight into and is receptive to professional assistance.

1. The offender expressed contrition and remorse for his actions on that day and recognised they were wrong and that violence is, in general, wrong.

1. The offender gave evidence that his job as a roof tiler is now everything to him and that is his goal in life is to own his own roof tiling company. He has enrolled in a number of courses to further his trade qualifications. His evidence verified much of the material in the Pre-Sentence Report (PSR) and the factual underpinnings of the testimonials which became Exhibit 2. He appears to be certainly heading in the correct direction. He impressed me as a person who was showing some determination, albeit with some historical obstacles in his path, to make the most of his life.

1. The offender is now 29 years old. He has no criminal convictions as an adult.

1. The offender reported to ACT Corrective Services that he left the formal education system prior to completing Year 7. He told the authors of the PSR that he had worked in the construction industry since that time, with his longest continuous period of employment being of seven years’ duration. He reported that he had recent employment as a roofer.

1. The offender described his childhood to the PSR authors as dysfunctional and stated that he has had no contact with his father for many years. He, however, maintains positive relationships with his mother and two sisters. The offender has experimented with illicit drugs on a recreational basis but this seems to be a thing of the past. He currently consumes, so he told the authors, up to six standard drinks three times per week. The PSR assesses the offender to be at a level of risky or hazardous use in respect of alcohol and may benefit from intervention. Under the heading “Attitude to Offences” the authors of the Report wrote:

Mr McIntosh did not dispute the case statement submitted to the Court. He acknowledged his behaviour had been excessive and that he had caused injury to the victim, fear, distress and possible ongoing trauma. Mr McIntosh advised he had been angered at the time of the offence due to illicit substances being brought into the family home associated with the victim, noting his anger had been inflamed due to being intoxicated. He stated he regretted his actions and was able to articulate appropriate levels of victim empathy.

Mr McIntosh was able to identify appropriate behaviours, on reflection, he should have used at the time, including walking away from the situation. He claimed to accept responsibility for his actions.

1. Under the heading “Opinion” the authors continued:

Mr McIntosh has been assessed at a low risk of general reoffending. His criminogenic risks relate to some familial and peer relationships and alcohol and cannabis use. Mr McIntosh has protective factors in stable accommodation, employment, the support of his sister.

1. Exhibit 2 contained, as well as a statement from the offender, references from Kristel Klohs, Robert Fuller, John Lewis and Marina Smith. These references confirmed the potential of the offender to live a socially acceptable and productive life, free of violence and with a component of hard work and personal satisfaction derived through that hard work.

The pleas of guilty

1. I propose to allow a discount of approximately 20 per cent pursuant to s 35 of the Crimes (Sentencing) Act. There was general agreement at the sentencing hearing on this figure.

Case law

1. During argument, my attention was directed to R v Bui [2019] ACTSC 366 and R v Alaragi [2020] ACTSC 77 as two recently decided comparable cases from this Court. I take from these two cases, and others, that it is open to a sentencing judge to impose a sentence of imprisonment for these offences but to suspend all or part of that sentence. I am persuaded by the evidence to take this course. The prospects of rehabilitation are promising, the offender is relatively young and has a realistic insight into his own behaviour.

Order

1. I make the following orders:

(a)For the offence of causing grievous bodily harm, the offender is sentenced to 19 months’ imprisonment (reduced from 24 months) commencing on 24 February 2020 and ending on 23 September 2021.

(b)For the offence of common assault, the offender is sentenced to 2 months’ imprisonment (reduced from 3 months) commencing on 24 February 2020 and ending on 23 April 2020.

(c)The outstanding sentence of imprisonment is suspended upon the offender entering into a Good Behaviour Order for a period of 24 months from 6 August 2020, together with the following additional conditions:

(i)To be subject to the supervision of the Director-General of the ACT Corrective Services, or that person’s delegate, and obey all reasonable directions of that person for the period of the suspension, or such lesser period as deemed appropriate by the supervisor;

(ii)To report to the Correctives Services Duty Officer forthwith;

(iii)To report to the Correctives Services Office at Level 1, 249 London Circuit, Canberra within 2 working days of entering this order; and

(iv)To perform community service work for 50 hours and to complete that work within 12 months from the date of this order.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson.

Associate:

Date: 6 August 2020