R v Merritt
[2019] ACTSC 23
•1 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Merritt |
Citation: | [2019] ACTSC 23 |
Hearing Dates: | 15 October 2018; 1 February 2019 |
DecisionDate: | 1 February 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [64]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty – where offender at a ‘crossroads’ – intensive corrections order report |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 Crimes (Sentencing) Act2005 (ACT) ss 6, 7, 10, 33, 35 Crimes (Sentencing Procedure) Act1999 (NSW) s 22 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Hili v the Queen [2010] HCA 45; 242 CLR 520 |
Parties: | The Queen (Crown) Patrick Jason Merritt (Offender) |
Representation: | Counsel ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) |
| Solicitors J De Bruin / R Khazma (Crown) T Sharman (Offender) | |
File Number: | SCC 45 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 12 March 2018 Patrick Merritt (the offender) pleaded guilty to an offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for recklessly inflicting grievous bodily harm is 13 years' imprisonment.
Agreed Facts
The agreed facts are set out in the statement of facts which forms part of Exhibit 1.
At about 2.00 am on Saturday 10 March the offender and two others were walking along Buckland Street, Mitchell in the ACT. The victim stepped in front of the offender. The offender and the victim faced each other. The offender then hit the victim with his right hand causing the victim to fall to the ground.
The victim remained motionless on the ground. The offender then crouched over the victim and hit the victim a number of times using his right hand. The offender then picked up the victim's upper body before dropping the victim. The offender then dragged the victim to the edge of the road and then back to the centre of the road.
The victim sustained the following injuries: two small subdural haemorrhages, a left subcondylar mandibular fracture, a haematoma of greater omentum and transverse mesocolon with associated tear mid transverse colon; paraduodenal haematoma.
Exhibit 4 explains the terminology. Subdural haemorrhage is subdural bleeding. It occurs within the skull. The subcondylar mandibular fracture is commonly referred to as the lower jaw bone, a fracture of the lower jaw bone. The haematoma refers to an associated tear in relation to the abdomen. These matters are referred to in greater detail in Exhibit 4.
Victim Impact Statement
In evidence before me was a Victim Impact Statement from the victim of the offence. The Victim Impact Statement of the victim and the statement of his mother were read in court by the prosecutor. The extent of the impact upon the victim was made clear by the Victim Impact Statement. The reading of the Victim Impact Statement was important as the offender heard what the victim had to say. Courts know the extremely serious effects of such offences as recklessly inflicting grievous bodily harm. Nevertheless it is valuable to receive the statement of the victim himself and the statement from his mother.
It was a traumatic and terrible time for the victim and there are significant ongoing consequences. The courts must never forget the importance of doing justice to the victim and to the offender. The Court formally acknowledges the significant impact that the offence has had and continues to have on the victim in this case.
Objective Seriousness
In relation to objective seriousness it is well-established that the two key matters to be considered when assessing the objective seriousness of offences of this type are first, the culpability of the offender's conduct, and second, the relative seriousness of the grievous bodily harm sustained by the victim: see R v Hidic [2017] ACTSC 307 (Hidic), R v Myles [2017] ACTSC 194, R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34.
10. Counsel for the offender submitted that the offence was approaching the mid-range of objective seriousness and the prosecution did not cavil with that description. I find the offences are approaching the mid-range of objective seriousness.
11. I accept on the evidence this was an offence slightly below the mid-range of objective seriousness but, of course, references to low range, middle range and high range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: R v Toumo’ua [2017] ACTCA 9; 265 A Crim R 499 (Toumo’ua).
12. Regardless of the label attached of below mid-range or approaching mid-range objective seriousness, this was a very serious offence involving unprovoked violence causing serious injury with significant consequences for the victim.
Subjective Circumstances
13. In relation to subjective circumstances, in evidence before me is the pre-sentence report prepared for the offender. The report sets out the following.
14. The offender is a 29-year-old man who identifies as an Aboriginal person. The offender described a dysfunctional childhood characterised by excessive alcohol use and verbal abuse and left home at 17 years of age following the incarceration of his father for a serious offence.
15. The offender obtained his Year 10 certificate, though advised that he still struggles with literacy. He completed a bricklayer apprenticeship and has been continuously employed in that vocation for the past 14 years.
16. The offender stated that since this offending he has distanced himself from friends who use alcohol excessively and stated that he has a number of pro-social associates. The offender stated that prior to the offence he was using cannabis and was also consuming over 10 standard drinks of full strength beer per day.
17. He claimed he has not used substances since the current offence and that he has attended Karralika for one on one counselling to assist in maintaining sobriety and managing anger. This was confirmed by Karralika staff. The offender returned clean urinalysis testing and the offender was assessed as requiring a substantial level of intervention for his drug use and intervention for his harmful consumption of alcohol.
18. The pre-sentence report also notes this is not the offender's first violent offence and the previous satisfactory engagement with the ACT Corrective Services does not appear to have lowered his propensity to offend in a violent manner. However the report noted the offender currently has protective factors including fulltime employment, familial support, stable accommodation and he has reported that he has ceased alcohol and cannabis. It was noted that, “Given that alcohol was a factor in the offending, this may reduce his risk of reoffending”.
19. I also had the benefit of the offender giving evidence before me. In particular, the offender gave evidence that since this incident he has not consumed alcohol, he has stopped using cannabis, and he stopped using these substances after this offence.
20. He was also asked this question from page 14 of the transcript: “How much do you recall of what happened outside,” and he indicated, “not much”. He indicated that he had seen the CCTV footage and his counsel asked him, “What's your reaction to that?”, and he indicated that he was disgusted with himself.
21. He further went on to give evidence in answer to this question: “In terms of alcohol, you indicated in your evidence that you haven't taken alcohol since or drunk alcohol since.” He indicated, “I have been to birthday parties, a couple of, but not a drop, mate”. He was also asked about his attendance at Karralika Programs: “You have also attended on Karralika and that was something that you did yourself.” He was asked, “What has that process been with Karralika,” at page 15 in the transcript:
That was drug and alcohol. They helped me just not - to not go back to it and just ways to get off it and - and then after that, for a while they started doing a bit of anger management with me and then I told them that… they helped me. They gave me a few choices, which one to do, and then I started that so.
22. He gave evidence that he is now in a relationship. His partner accompanied him to court. He gave the following evidence:
Can you tell her Honour why you deserve another chance?---It’s just not me and I just feel like a new person now. Been off the grog and I never ever want to go down - it’s been probably the worst six months of life, apart from meeting that girl, my new missus.
23. He also gave the following evidence:
You heard the victim impact statements that were read out today. Have you seen them before?---Yes.
You read them?---Yes.
And what is your reaction to them?---Disgusted.
24. I take into account the subjective matters and evidence outlined above.
Remorse
25. In relation to the evidence given by the offender and his expression of remorse, I accept that he is remorseful. In his evidence before me I formed the view that he was sincere about his efforts to reform himself as referred to above.
26. Evidence was also given by the offender’s brother on 15 October 2018 and in particular, he was asked this question by counsel: “What have you seen in terms of changes he has made in his life?” He gave evidence including the following:
…he’s just embarrassed, he didn’t know what happened, he’s just confused. And told him, “You need to come live with me in Yass.” So my wife and his niece. So he stayed out there for two weeks. That first week, because he had to give up - that’s the first time he’s ever give up smoking since the age of 15. So he’s been constant smoking since then. Never ever attempted it. That’s another thing that used to annoy me, he never attempted to give it up. And yes, the two weeks out with me, first week he was struggling pretty bad, but yes, I’m proud of him now. Like what he’s done, that’s like - lot of - like when you’re talking about that other counselling course, he had no support then. Now he’s - he has myself, my wife. I wouldn’t say his mother’s much support, or our mother sorry. Dad’s definitely not. Dad used to smoke marijuana with him and what not. Like that was just the normal we grew up with.
How often have you been seeing him since?---Every two weeks.
27. His brother also gave the following evidence:
What have you seen when you spend time with him?--- He’s changed in everything. Especially, you know he’s found his partner, that’s - he’s got support now. He’s got - I’ve seen him with her three kids. He’s amazing with kids, I won’t take that away from him. He’s got a good heart. Anyone will say he’s got a good heart when he’s sober and at work and what not but people - when he drinks, it’s just - I was the same. We just had a lot anger built up and that’s the only way we knew how to deal with it.
References
28. In evidence before me as part of Exhibit 2 were five references in support of the offender. First, there was a letter from a long-term friend of the offender's, dated 31 July 2018. The following was stated:
He has recently moved in with his partner and her children he has informed me that he is looking forward to the next chapter in his life and feels that he now has a place to call home.
I have spoken with Patrick about his current court matter and he has displayed in my opinion heartfelt remorse for what had happened.
29. There is also a letter from Ms Cox, a counsellor at Karralika, dated 31 July 2018 in relation to drug and alcohol counselling, noting that, “Since the referral was made, Patrick has attended 7 counselling sessions [as at 31 July 2018]. Topics such as relapse prevention, anger management and stress have been explored during this period.”
30. Third was a letter from the offender's current employer indicating:
It has however through our conversations become apparent that by his own addition, Patrick has a problem with alcohol and its effects. However, to his credit, he is actively doing something about this issue. I know he has regret over his actions and is determined to make sure it does not happen again.
As an employee, he is always punctual and reliable. He has a strong work ethic and is well liked by his fellow employees…
As Patricks employer and friend, I am hopeful that with his commitment to improvement and a strong support network, he will be able to learn from the mistakes he has made that have placed him in this situation and become the best version of himself possible.
31. Also before me I had a letter from a counsellor, Ms Etheredge at OzHelp, a mental health organisation supporting men, in support of the offender, indicating that:
Since March 2018 Patrick has attended one counselling session and engaged in five support sessions with OzHelp and has indicated to me he will continue to access support and counselling through OzHelp.
32. In addition, there was a certificate of recognition to the offender from the New South Wales Police Force dated 15 March 2012 in recognition of selfless assistance provided by the offender to victims of a serious motor vehicle accident. It reads:
The valuable assistance provided to Police and the victims of a serious motor vehicle accident that occurred on the Kings Highway, Braidwood, on 1 January 2010. Despite the presence of smoke, the smell of petrol and the possibility that the damaged vehicle may explode you selflessly remained with the victims working to free the door and extricate them from the vehicle.
33. Additionally, exhibited today, I have before me, as I have indicated, Exhibit 4 explaining the medical terminology in relation to the serious injuries suffered by the victim, and the certificate from EveryMan Australia, a program completion certificate for preventing violence and managing anger. I take these references and documents into account on sentence.
Restorative Justice Report
34. The offender indicated a willingness to participate in restorative justice and, to that end, inquiries were made as to whether this was a realistic proposal. The current offence was assessed as eligible but not suitable for restorative justice at this time.
Intensive Corrections Order Report
35. When this matter originally came before me on 15 October 2018 I determined that I should give serious consideration to the sentence being served by way of an intensive corrections order (ICO), and to that end, I referred the offender for assessment.
36. The ICO assessment report dated 30 January 2019 concludes with the recommendation that the offender has been assessed as suitable for an ICO. The assessment report noted the offender was subject to three urine analysis tests and one breath analysis test during the assessment period, all of which were negative. It further notes he is in a stable relationship with his partner of several months and that he resides currently with her and her three children.
37. The report assessed the offender as having a medium-low risk of general reoffending, noting that he is undertaking appropriate interventions to address the significant risk factor of alcohol and substance abuse. It was reported that a curfew would not be required. It was suggested that alcohol and drug relapse prevention would be targeted if an ICO order was made.
38. I should also indicate in relation to the intensive corrections order report that there were nine interviews with the offender, interviews with the offender's partner, information was obtained from EveryMan Australia, a discussion with Karralika staff, court documents and statement of facts, ACT Corrective Services files and records.
39. It is also noted in the report that the offender has completed an apprenticeship in bricklaying and has been consistently employed as a bricklayer for almost 15 years. The service contacted his employer who confirmed he had worked with him on and off for the past three years and advised of stable ongoing employment since late 2018.
40. In relation to alcohol and drug use, the ICO report indicated that:
He stated he has not used alcohol or cannabis since the commission of the above offence. Staff from Karralika confirmed that Mr Merritt had attended 12 counselling sessions around substance misuse up until October 2018 and engaged appropriately.
Criminal History and Crossroads
41. In relation to criminal history, the offender does have a criminal history including offences of assault occasioning actual bodily harm in 2008, 2009 and 2013, driving whilst suspended in 2013, and damage or destroy property in 2012. What must be said though in respect of this offender at this time and in relation to the material that I have reviewed in my remarks on sentence is that I have formed the view that the offender is at a crossroads in his life, and that therefore a sentence of imprisonment served by way of ICO rather than fulltime custody is appropriate.
42. This, of course, calls for a consideration of the principle outlined in R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 (Osenkowski), discussed in R v Ang [2014] ACTCA 17. The sentencing discretion of judges should not be unduly circumscribed in such circumstances.
43. The well-known passage in Osenkowski from the judgement of King CJ at 212-213 is as follows:
It is important the prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy were judges sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
44. I have formed the view that leniency at this stage of the offender’s life may lead to reform and I have formed the view for the following reasons.
45. His plea of guilty was entered at the earliest possible opportunity. The offence occurred on 10 March and he entered his plea of guilty on 12 March at the first appearance at the Magistrates Court.
46. There is evidence before me that he is remorseful. I have had the benefit of the offender giving evidence before me in relation to his remorse and in relation to the important and positive changes that he has made in his life. He has a positive and supportive relationship, he has a strong record of employment and, as I have discussed in these remarks on sentence, he has undertaken a great deal of rehabilitation which is in evidence before me.
Plea of Guilty
47. I should indicate in relation to the plea of guilty that the offender entered pleas of guilty at the earliest opportunity as I have indicated and pursuant to section 33(1)(j) of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account of plea of guilty by the offender. Section 35 provides the matters the must be considered.
48. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act (NSW). Section 22 is focused on the utilitarian values: see Toumo’ua; Xiao v R [2018] NSWCCA 4; 96 NSWLR 1.
49. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
50. In my view, it is appropriate in this particular case that I allow a 25 per cent discount for the pleas of guilty: see R v Bandy [2018] ACTSC 261 (Bandy) at [62]-[63]. I should also note that the offender has spent two days in custody referable to this offence.
Time in Custody
51. The offender has spent two days in custody referable to this offence.
Cases
52. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who inflicted grievous bodily harm on victims. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
53. I was referred to my decision of Bandy by the parties. In that matter, the offender punched another person without provocation, causing significant dental injuries and lacerations and nerve damage to the mouth of the victim. The offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm and was sentenced to 30 months’ imprisonment to be served by way of intensive corrections order.
54. In Bandy, I reviewed a number of comparable cases from this jurisdiction at [77]-[99] (see R v Kepaoa [2017] ACTSC 414; R v Sikoulabot [2018] ACTSC 217; R v LT [2017] ACTSC 343 [a sentence of two years and three months imprisonment, fully suspended with a good behaviour order]; R v Burgess [2017] ACTSC 249 [a sentence of three years and one month imprisonment]; R v Pallier [2017] ACTSC 112 [a sentence of 27 months imprisonment]; R v McBride [2017] ACTSC 102 [a sentence of three years imprisonment]; R v Carmody (No 3) [2017] ACTSC 60 (Carmody) [a sentence of two years and five months imprisonment, suspended for three years]; R v Rappel [2017] ACTSC 38 [a sentence of two years and 11 months imprisonment]; R v Beniamini (No 2) [2017] ACTSC 32 [a sentence of two years imprisonment]; R v Smith [2016] ACTSC 330 [a sentence of two years imprisonment, fully suspended with a good behaviour order]; R v Seretin [2016] ACTSC 45 [a sentence of four years imprisonment]; R v Williams [2015] ACTSC 406 [a sentence of three years imprisonment]; R v Neish (Unreported, Refshauge J, 24 May 2013) [a sentence of two years imprisonment, to be served by periodic detention for three months, and suspended thereafter]; R v Pumpa [2014] ACTSC 223 [a sentence of two years and eight months of imprisonment, served as 12 months of periodic detention and suspended thereafter]; R v Laipato (unreported Nield AJ, 16 September 2010) [a sentence of three years imprisonment]; R v RC (Unreported, Burns J, 19 October 2012) [a sentence of six years imprisonment]; R v Cranfield [2017] ACTSC 171 [a sentence of three years, seven months and five days imprisonment]; R v Bartlett [2016] ACTSC 390 [a sentence of three years and six months imprisonment to be served by way of ICO] and R v Rehinberger [2016] ACTSC 14 [a sentence of 18 months imprisonment, full suspended with a good behaviour order]).
Statutory and Other Considerations
55. In relation to statutory considerations, in sentencing the offender the court is required to take into account those matters under s 33 that are known and relevant and I have referred to the relevant matters above. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, protection of the community, accountability, denunciation, rehabilitation and a recognition of harm to the victim are important sentencing considerations.
56. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison and, as with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick under Markarian v The Queen [2005] HCA 25; 228 CLR 357. It is also important that I take into account that childhood disadvantage does not diminish with the passage of time and repeat offending, but does not have the same mitigatory relevance for all purposes of punishment: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
57. Violent attacks by young men that cause significant injury to victims are all too common and the sentencing purpose of general deterrence requires the imposition of a significant sentence: see Hidic. Accountability, denunciation and recognition of harm to the victim are also important sentencing considerations.
Sentence
58. It must be recognised that the assault on the victim has had a very significant impact upon him. Both the short and long-term consequences of being the victim of violent assault must be acknowledged by the court. It must also be recognised that no sentence that the court imposes can rectify the damaging consequences of what has occurred to the victim in the commission of this offence.
59. Both parties accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of fulltime imprisonment or whether it can be served by way of intensive corrections order. Both the defence and the prosecution have indicated that it is appropriate in this matter that the sentence be served by way of intensive corrections order but the prosecution makes the important submission that there should be an additional matter of community service work in that regard. I take on board the submission that is made by the prosecution in that regard as it accords with my view of the seriousness of this matter.
60. I should also refer to what was stated by Murrell J in R v Hill [2016] ACTSC 310 (Hill), “Where a person has very good prospects of rehabilitation”, and I find that there are good prospects in this case, “by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community”.
61. It was also emphasised in Hill that sentencing must deliver individualised justice and there will be exceptions to the necessity for fulltime custody. In coming to a conclusion by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, the offender's plea of guilty at the very first available opportunity, his remorse and disgust at his conduct as expressed in his evidence before me, the positive ICO report, his good prospects for rehabilitation and my view that he is at a crossroads in his life.
62. In my view, the recommendation of the ICO assessment should be taken up, an ICO ought to be imposed and it must be remembered, of course, in this context that the imposition of an ICO is not a lenient sentence. Its content will require strict adherence and, if this is not followed, could result in a period of fulltime custody.
63. The appropriate sentence for the offence of recklessly inflicting grievous bodily harm, in my view, is 36 months' imprisonment, which I reduce by 25 per cent because of the plea of guilty, and therefore sentence of 27 months is appropriate. In light of the seriousness of the offence I impose a condition relating to the undertaking of community service. Further, in the light of the need for ongoing rehabilitation, conditions relating to rehabilitation programs and the consumption of alcohol are also appropriate.
Orders
64. I make the following orders.
(a)In respect of the offence of recklessly inflicting grievous bodily harm the offender is sentenced to 27 months' imprisonment from 30 January 2019 and ending on 29 April 2021.
(b)Pursuant to section 11 of the Crimes (Sentencing) Act 2005 (ACT) the offender is to serve his sentence by way of intensive corrections order. I impose the core conditions and I impose the following additional conditions:
(i)that the offender perform 250 hours of community service within 24 months;
(ii)that the offender attend any programs or counselling that he is directed to attend by the Director-General including in relation to alcohol and drug use and violence; and
(iii)to obey the directions of the Director-General in relation to consumption of alcohol.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
0
4
3