R v O'Brien - [2022] ACTSC 86

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v O’Brien
Citation:	[2022] ACTSC 86
Hearing Date(s):	22 April 2022
DecisionDate:	22 April 2022
Before:	Elkaim J
Decision:	See [23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm
Legislation Cited:	Crimes Act 1900 (ACT) s 20 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33
Cases Cited:	R v Crick [2021] ACTSC 106 R v Kourpanidis [2021] ACTSC 112
Parties:	The Queen ( Crown) D O’Brien ( Offender)
Representation:	Counsel B Morrisroe ( Crown) A Hourigan ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender)
File Number(s):	SCC 17 of 2022

Elkaim J

On 28 January 2022, the offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm in contravention of s 20 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 13 years’ imprisonment.

The offence occurred on 17 July 2021. The previous afternoon, Mr Stark, the victim, went to a pub in the suburb of Holt. Not only did he drink to excess but he also had “3 lines” of cocaine.

Early the next morning, still at the pub, Mr Stark became offensive to a number of people. He threatened at least one female person. The offender and two other men were standing nearby. They tried to intervene to protect one of the women. Mr Stark was advised to leave. He did not.

Instead of leaving he threatened the three men. He said he would “glass them”. The offender hit him on the left side of his head. Mr Stark fell backwards, hitting his head on a table as he descended to the floor. The offender then hit him a further seven or eight times.

An ambulance was called because Mr Stark was clearly injured. He was spitting his teeth out of his mouth. Nevertheless he continued to be offensive and had to be removed from the ambulance. He did arrive at Canberra Hospital where he was treated. A CT scan showed an un-displaced fracture of his jaw. He later required an open reduction and internal fixation of his mandible. A plate and four screws were inserted. He also needs dental treatment.

I watched the incident on CCTV. It is notable for the length of time that occurred before the assault and for the victim’s apparent reluctance to leave despite the urgings of at least one other person.

Overall there is no doubt that the assault was serious, in particular because of its effects. I assess the objective seriousness as just below medium.

The offender was born in 1997 in Ireland. He is the youngest of four children. He had a happy and supportive upbringing. He lost his sister, when she was 15 years old, when she fell overboard on a cruise ship in 2006. The effect on the family was devastating. The family broke up. His father committed suicide. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Brien

Details

AGLC: R v O'Brien [2022] ACTSC 86
Case: [2022] ACTSC 86
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted the offender, D O’Brien, for recklessly inflicting grievous bodily harm. The incident occurred on 17 July 2021, where the offender assaulted Mr. Stark, causing severe injuries. The court was tasked with determining the appropriate sentence, considering the circumstances of the offence, the offender’s background, and the principles of sentencing. The primary legal issues involved assessing the objective seriousness of the assault, the offender’s personal background, and the principles of deterrence and rehabilitation.

The court assessed the seriousness of the offence, noting the significant injuries sustained by the victim, which included a fractured jaw and the need for surgical intervention. Despite the severity of the injuries, the court highlighted the inappropriateness of the offender’s actions in taking the law into his own hands. The offender’s background, including his supportive upbringing marred by personal tragedies, was considered. The court also acknowledged the offender's efforts to address his issues through counselling and cessation of alcohol use.

Justice Elkaim concluded that while the offender’s actions were serious, the appropriate sentence should also consider the offender’s background and the need for deterrence. The court ordered a sentence of nine months and two weeks' imprisonment, reduced from 12 months, to commence on 3 March 2022 and end on 16 December 2022, with the period suspended on the condition that the offender enter into a good behaviour order for 24 months. The sentence aimed to reflect the seriousness of the offence while considering the offender’s personal circumstances and the need for public deterrence against taking the law into one’s own hands.

Orders