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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 offender had been particularly close to his father.

1. The offender came to Australia in 2016, initially on a working holiday, but wanting to start a new life. He resides with a sister in Sydney.

1. The offender does have a criminal record, but it is small and not relevant to the present circumstances.

1. Mr O’Brien completed the equivalent of Year 12 in Ireland. He has done management and leadership courses and also an apprenticeship in carpentry. He has been in stable employment as a carpenter for some time. He is said to be a good worker with a bright future.

1. The offender turned to alcohol to deal with his personal upset. He says he has not drunk alcohol since the offence. He has had counselling. He has attended 12 sessions with a psychotherapist to address his emotional issues.

1. In talking to the authors of the pre-sentence report, the offender has acknowledged the error of his actions, although did seek to justify them on the basis of Mr Stark’s abuse and threats.

1. Mr Stark behaved appallingly. He deserved to be reprimanded and evicted from the pub. Perhaps even the police should have been called to take him away.  There is a victim impact statement from Mr Stark. He certainly didn’t deserve the hurt and discomfort he has and will endure arising from his bad conduct.

1. But whatever Mr Stark’s failings, there was no room for vigilante conduct. As I said in R v Crick [2021] ACTSC 106, vigilantism “can be as criminal as the conduct it seeks to address”. I mentioned this again in R v Kourpanidis [2021] ACTSC 112, where an assault on a drunken man related in that man’s death.

1. Exhibit 1 is a tender bundle from the offender. I think the most important document is the letter from the offender’s older sister, with whom he lives in Sydney. She, not surprisingly against the family background, has mental health issues. She has been suicidal. She has been diagnosed with a bipolar disorder and suffers from post-traumatic stress disorder. Her brother is both a companion and, if not formally, a carer for her.

1. The offender’s background can be taken into account by me. The Crown’s suggestion that there should be community service is a good suggestion but has the failing that it would need to be done in the ACT. To compel the offender to return to the ACT from time to time, against the background of his sister’s condition, I think would be inappropriate.

1. The Crown has said that public deterrence is important. I agree, but as with every case, the particular facts of the case will enhance or temper the necessary principles of sentencing that will apply. Persons who drink at public bars, in fact anywhere, must be aware that taking the law into their own hands, or exacting revenge or instruction on another person, will not result in any form of justice to that other person. It will only result in the condemnation of the attacker.

1. The parties agree that a term of imprisonment is necessary. The offender has already spent 50 days in custody. I think this is a sufficient period of full-time custody, but it must be coupled with a further term of suspended imprisonment.

1. Learned Counsel for the offender asked me to take into account that the offender wished to continue working in Australia and will, sooner or later, need to make an application for an extension of his Visa. This application may face the hurdle of the existence of a suspended sentence. Whether the sentence is still operative or has been completed, I do not think will affect the application. I note that on the offender’s submissions the suggested good behaviour order is for up to 24 months.

1. The offender pleaded guilty at an early stage, but only after the delivery of a prosecution brief. I think just above 20 per cent is the appropriate discount.

1. In addition to the above matters I have taken into account ss 6, 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT). As to s 10, which says that prison is a last resort, it is not applicable because the offender has already spent some time in custody.

1. I make the following orders:

(i)The offender is sentenced to nine months and two weeks’ imprisonment, reduced from 12 months’ imprisonment, to commence on 3 March 2022 and end on 16 December 2022.

(ii)The period of imprisonment is suspended with immediate effect on condition that the offender enter into a good behaviour order on core conditions for a period of 24 months from today.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: