R v Nelson
[2015] ACTSC 291
•10 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nelson |
Citation: | [2015] ACTSC 291 |
Hearing Date(s): | 10 August 2015 |
DecisionDate: | 10 August 2015 |
Before: | Walmsley AJ |
Decision: | See [34] – [37] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – assault occasioning actual bodily harm – where the offender has agreed to give evidence in relation to the trial of his co-accused – reduced sentence imposed. |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 |
Parties: | The Queen (Crown) Lemuelle Nelson (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Number(s): | SCC 63 of 2015 |
Walmsley AJ:
Background
The offender appears before me for sentence, having pleaded guilty to one count contrary to the provisions of s 24 of the Crimes Act 1900 (ACT), namely an offence of assault occasioning actual bodily harm. The maximum penalty for that offence is five years' imprisonment.
There are three accused on the indictment. Mr Nelson and his two co-accused were charged also with aggravated robbery, however, the Crown, in the case of Mr Nelson, accepted his plea of guilty to the assault occasioning actual bodily harm in satisfaction of the indictment as it affected him. His co-offenders maintain pleas of not guilty to the offences alleged against them on the indictment and their trial in respect of those offences is set down for hearing on 29 September 2015.
Significantly, for the purpose of sentencing Mr Nelson, he has agreed to give evidence which the Crown describes as significant and vital in its value.
According to the agreed facts which were in evidence before me the offence committed by the offender occurred in the following circumstances.
The Offence
He and his co-accused, Janayah Kelly and Matthew Glass, left a nightclub with the complainant, the victim of the assault, on the night of the offence. At that time the offender knew the complainant, Mr Kaine Bender, and he knew one of his co-accused, Janayah Kelly. The offender knew that Mr Bender was Ms Kelly’s partner and that they had a child as a result of the relationship.
At about 9.30 pm on Saturday, 11 October 2014 the complainant attended the Monkey Bar Nightclub in Bunda Street, Canberra City in the Australian Capital Territory (ACT). Also at the club were the co-offenders. A short time later, Ms Kelly, Mr Glass and the offender left the club and started to walk in a northerly direction towards Reid. The complainant followed behind them and as he crossed over Kogarah Lane in Reid in the vicinity of the Bega Court flats and the Argyle Square Apartments, Mr Nelson ran towards him and struck him with a closed fist across his forehead. He followed that with a second punch which landed on the right side of his head. The impact of the two punches caused the complainant to fall to the ground.
The complainant was then further assaulted by Ms Kelly, whilst being assaulted by Mr Nelson. Ms Kelly ran and pushed the complainant towards the ground on a number of occasions and removed his wallet from the pocket of his trousers. All three offenders then left the complainant on the ground and walked away in a northerly direction. The complainant then made his way towards the northern section of Argyle Square where he collapsed to the ground. He started to yell for help. He asked for police to be called and they were called.
At about 11 o'clock that evening police arrived and found the complainant bleeding heavily from his mouth. They also observed blood on his clothing. They arranged for the ACT Ambulance Service to take him to the Canberra Hospital to receive treatment for his injuries.
Later that evening Mr Glass took part in a record of interview at the police station. He told police he had been at the club with Ms Kelly, the offender, and the complainant. He said the offender and Ms Kelly had left the club with him; the complainant had followed them and had been in an argument with Ms Kelly. He told police he had heard Mr Nelson telling the complainant to “fuck off” as they got near the Target multistorey car park in Cooyong Street. He then saw Mr Nelson punch the complainant once or twice.
The offender at the time of this offence was on bail for other matters going back to 2011; indeed, a warrant had been issued for his arrest for failing to appear in the Magistrates Court as required by a previous bail undertaking. He was also in breach of a Parole Order. So this offence was committed whilst he was on conditional liberty. He was arrested on 29 October 2014 and has been in custody since, although only 21 days of his custody are due solely to this offence.
There was no victim impact statement in evidence but I conclude from the circumstances, including his injuries, that for the victim this offence would have been very frightening and distressing. Objectively the offence was made worse because it was unprovoked, as the Crown put to me, and it consisted of two heavy punches, one after the other. But, as the Crown conceded, the injury was not as serious as in some other cases of assault occasioning actual bodily harm.
There was no medical evidence before me. However, as I have observed, the agreed facts show that when the police arrived the victim was bleeding heavily from his mouth. There was a photograph in evidence which was consistent with that. Notwithstanding the fact that he was bleeding from the mouth, in the absence of other evidence I conclude that the injury was not a major one.
Consideration
I have noted that the offender pleaded guilty. I propose to give him credit for that. The plea was not made at the earliest opportunity but I took the Crown to say that it was of significance because of when it was made. I propose to deduct approximately 20 per cent from the penalty I would otherwise have imposed because of that. I also propose to reduce his penalty significantly for his future assistance and I will return to consider that in a moment.
Unfortunately for the offender, he has a very extensive criminal history, not just in the ACT but also in New South Wales and in Victoria. His record includes other instances of crimes of violence, including the offence of assault occasioning actual bodily harm. He has served terms of imprisonment for his crimes of violence and he has served periods on parole. I conclude that, thus far, his terms of imprisonment have not succeeded in steering him away from a life of offending. However, there are significant matters in his background which I am satisfied do throw some light on his lengthy criminal history and which explain it, without necessarily excusing it.
The offender is aged 28. He is an Aboriginal Australian. He is single. He has no children. He has a brother, two sisters and two half-sisters. His schooling was impoverished. He went only as far as year seven in school. In his time at school he was suspended and expelled on many occasions for poor conduct. He suffered so much physical violence at home from his mother that when he was approximately nine years of age welfare authorities took him into care.
His father had a significant alcohol addiction at the time and I conclude that his father was not as supportive as he might otherwise have been. Unfortunately the offender suffered physical abuse when he was in a foster home and was then moved and placed in what has been described in one of the reports as a “boy’s home”.
[Redacted for legal reasons]. He has had little employment, in fact, two months being about the longest period for which he has ever held a job. He has no driver's licence and he has no trade qualifications.
He began using alcohol at a young age and he developed an addiction. He is not abstinent now but he drinks far less often than he did. When he is free to do so, he told me today, he proposes to attend Alcoholics Anonymous.
He began to use illicit drugs when he was young, those drugs being cannabis and amphetamines, and, especially, ice. When he was using ice he was injecting it.
In 2011, when he was to be sentenced for other matters, he was seen by a consultant psychiatrist, Dr Graham George. Dr George concluded that the offender had suffered a chronic mental illness which affected his insight and judgment when he was not medicated. He considered he needed to be on a Psychiatric Treatment Order indefinitely and he thought it was necessary that he be followed assiduously by Mental Health Services. He said the prognosis was guarded.
Forensic Psychiatrist, Dr John Kasinathan, who saw him for the purpose of this case on 22 July 2015, concluded that he would be classified under the DSM-5 as having schizophrenia, amphetamine, alcohol and cannabis use disorders and an antisocial personality disorder as well. He thought, however, that the psychotic symptoms were not related to his offences; that is, they were not carried out by reason of his psychiatric conditions.
The records before me show that at various times over the years the offender has had suicidal thoughts and engaged in suicide attempts.
There was a detailed Pre Sentence Report in evidence. The authors of the report noted that while in recent custody the offender had been subjected to some disciplinary offences. However, a positive note which came from that report is that he remains compliant with his recommended treatment, that is, for his psychotic disorder and his addictions.
The offender told the authors of the report that he was drug affected at the time of this offence. The authors of the report considered the offender to be genuine in his expression of victim empathy at the time the report was prepared.
Because of his unstable mental health and substance abuse the offender does not qualify for community service orders or for periodic detention. In any event, his counsel, Mr Doig, conceded that there was no alternative to a period of full time imprisonment and that concession was entirely appropriate.
The Pre Sentence Report authors, under the heading, "Good Behaviour Order" said this:
Taking into account all of the above information and incorporating a standardised risk/needs assessment process, Mr Nelson is suitable for a high level of intervention by ACT Corrective Services, commensurate with the assessed risk.
Supervision would include strategies to address the following identified areas of dynamic risk:
· alcohol and illicit drug use
· engagement with mental health services
· companions
· poor attitude and compliance
· unstable accommodation/Employment History
And may include participation in:
·long-term intense drug and alcohol rehabilitation to address AOD and anti social attitudes
·compliance with an agreed mental health regime including trauma and or grief counselling
·referral to accommodation service provider/Job network provider.
It is recommended a condition be included, that supervision be only for the period deemed necessary by ACT Corrective Services.
If Mr Nelson is given a period of Supervision he is to report to the ACT Community Corrections office at Eclipse House within 48 hours of entering such an Order.
(emphasis as per original)
The offender has spent some time with law enforcement authorities, giving them a statement of his involvement in the relevant offences on 11 October 2014. I accept his evidence to me that this is the first occasion in his very lengthy criminal history of offending where he has agreed to help law enforcement authorities. He told me and I accept that some of the disciplinary offences he committed whilst in the AMC came about by reason of word having spread that he was giving evidence against his co-offenders. He is now in protective custody. I am satisfied that that makes his service of imprisonment more difficult for him.
I understand the concerns with those who have interviewed him who have said that his insight into his offending has its limits but in my assessment he does have some insight. Further, I accept that he genuinely now sees, this time, when he has agreed to help the Crown Prosecutor, as something of a turning point for him.
He has, it seems, reconciled with his father, who lives in Canberra, and who, he told me, is dying of lung cancer. He told me that he wishes to be closer to his father so that he can see him. He is also, it seems, close to an aunt, who lives in the same suburb as his father and who, he says, is prepared to have him live with her when he is released from custody.
The offender told me that he realises that if I discount his sentence for the assistance, which I propose to do, then he may be re-sentenced if he later goes back on his undertaking to the Crown to assist against his co-offenders.
The offender, I took from his evidence, accepts that he needs a great deal of help with his rehabilitation when he returns to the community.
I do find that the offender is remorseful. I am cautious about his prospects of rehabilitation but I am impressed by the fact that he has agreed to give assistance. That, I think, augers well for his rehabilitation. It is also consistent with remorse.
I consider that the appropriate penalty is, as was conceded, a term of imprisonment, and I propose to suspend part of it on his entering into a Good Behaviour Order.
Sentence
The offender has been in custody, as I have observed, for other offences, since 29 October 2014. For this offence alone, as I have also noted, he has been in custody for 21 days since 20 July 2015. But for the plea of guilty I would have sentenced him to a term of imprisonment of two years. By reason of the plea I have reduced that to 19 months. By reason of the future assistance I have decided to reduce the term of imprisonment by seven months so that the term of imprisonment is 12 months and I propose to suspend that sentence after he has served six months. But for his assistance, the sentence would have been 19 months suspended after 10 months; because of the assistance it will be 12 months suspended after six months.
To do honour to the principle of totality I have concluded that the period of imprisonment should be backdated to commence on 20 March 2015. After serving six months, that is from 20 March 2015 to 19 September 2015, which I direct be served, the remaining six months is to be suspended on his entering into a Good Behaviour Order. The Good Behaviour Order is to be for two years.
By that Order he must agree to be supervised by ACT Corrective Services and accept and obey their directions concerning treatment for his alcohol and illicit drug use. He must engage with Mental Health Services. He must accept their directions as to the companions he mixes with and as to how he can address his previous poor attitude and compliance. He must accept their directions as to improving his employment prospects and as to any long-term intensive drug and alcohol rehabilitation which they recommend to address his alcohol and drug use and his antisocial attitudes.
He must accept their directions and comply with an agreed mental health regime, in particular, dealing with trauma and grief counselling and he must also accept their directions in connection with accommodation. I direct that supervision is only to be for the period deemed necessary by ACT Corrective Services. The offender is to report to the ACT Community Corrections Office at Eclipse House within 48 hours of being released from custody.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Walmsley. Associate: Date: 22 September 2015 |
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