R v Paredes Valdez
[2022] ACTSC 126
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Paredes Valdez |
Citation: | [2022] ACTSC 126 |
Hearing Date: | 13 May 2022 |
DecisionDate: | 24 May 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [185] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – common assault – “one punch” attack – whether wholly suspended sentence or Intensive Correction Order appropriate – Intensive Correction Order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) |
Cases Cited: | Butters v The Queen [2010] NSWCCA 1 |
Parties: | The Queen ( Crown) Marcos Paredes Valdez ( Offender) |
Representation: | Counsel N Deakes ( Crown) K Musgrove ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Offender) | |
File Numbers: | SCC 55 of 2022; SCC 56 of 2022 |
LOUKAS-KARLSSON J:
Introduction
On 3 March 2022, Marcos Paredes Valdez (the offender) pleaded guilty to the following offences:
(a)An offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 13 years imprisonment.
(b)An offence of common assault, contrary to s 26 of the Crimes Act. The maximum penalty for this offence is two years imprisonment.
Agreed Facts
The agreed facts are set out in the Agreed Facts which forms part of the Crown Tender Bundle. The agreed facts may be summarised as follows:
On the evening of Saturday 18 December 2021, the offender was with workmates, Mr Lachlan Davis and another unidentified male, at Wanderlust Gentleman’s Club in Mitchell, ACT.
Also at the establishment was the primary victim, Mr Galbat, and the secondary victim, Mr Tsogttsembez.
At about 10:59pm, the primary victim and the secondary victim exited the club and walked into the carpark at the front of the building. A short time later, the offender, Mr Davis, and the unidentified male also exited the venue.
A short time later, a verbal altercation commenced between all parties.
The three men – the offender, Mr Davis, and the unidentified male – approached the primary and secondary victim and Mr Davis attempted a roundhouse kick towards the secondary victim’s head. Evasive action was taken, and Mr Davis missed.
The primary victim held out his right hand towards the offender, pushing him gently away from the secondary victim. The offender and Mr Davis approached the primary and secondary victims to within about 50 centimetres. At least twice the primary victim lightly brushed the offender away from the secondary victim.
The offender was standing to the right of the primary victim, when he lifted his left foot slightly off the ground and simultaneously brought his clenched right fist in an upwards arc, punching the primary victim to his chin and breaking his jaw.
The force of the blow was such that the primary victim immediately fell backwards onto the paved carpark, hitting his head, which caused a laceration on his head and a loss of consciousness.
The offender then swung his right fist towards the secondary victim’s head. The secondary victim ducked and avoided the strike, with the offender’s fist travelling over his head.
At this time, Mr Davis was standing behind the secondary victim and wrapped his right arm around the secondary victim’s shoulders, dragging him to the ground, where he landed on his right side. While the secondary victim was on the ground, Mr Davis kicked the secondary victim’s back with his right foot.
As the secondary victim attempted to stand, the offender swung his left fist into the secondary victim’s chest, causing him to fall back to the ground again, whereby the offender continued to punch him, once with his left fist and then once with his right fist.
Mr Davis then pulled the offender away by his shoulders as security and other patrons arrived and began to check on the welfare of, and render assistance to, the primary victim, who was still unconscious.
At 11:01pm, a security guard arrived at the scene in his vehicle. Mr Davis walked to the guard and began to speak to him. At the same time, the offender made his way past the front of the vehicle towards the secondary victim, who had retreated backwards away from the unconscious primary victim. The two men re-engaged in a verbal argument.
Mr Davis approached the offender from behind and placed him in a bear-hug type hold across his back and chest and tried to extract him from the dispute. The offender broke free from Mr Davis’s grip and took steps towards the secondary victim who began to cower from the offender.
The offender punched the secondary victim with a closed, left fist to his stomach, followed quickly by a right clenched fist also to the stomach region. As the secondary victim began to fall to the ground, the offender threw a third punch with his right hand, but it did not connect with the secondary victim. The offender was again held back by Mr Davis.
The secondary victim stood back up and walked around the outside bar area away from the offender and Mr Davis. The offender continued to gesture and point aggressively while yelling at the secondary victim, who turned and began to walk away.
The secondary victim then returned closer to Mr Davis, who continued to yell and point at the secondary victim. Mr Davis was briefly held back by the security guard before pushing the secondary victim with both hands, causing him to stagger about three metres but maintain his footing.
The security guard intervened and escorted the secondary victim away from Mr Davis and the offender, who had made his way back and was reengaging in the verbal altercation, whilst being physically restrained by Mr Davis. The secondary victim was escorted away by security.
At about 11:04pm, the offender re-entered Wanderlust, followed by Mr Davis at about 11:08pm.
At about 11:14pm, police arrived on location and observed the primary victim still lying unconscious on the ground, albeit in the recovery position. ACT ambulance arrived a short time later and conveyed the primary victim to The Canberra Hospital.
The primary victim did not regain consciousness whilst at the scene.
Police spoke with the secondary victim who provided a version of events. Police then viewed the CCTV footage and identified the offender and Mr Davis, locating them inside Wanderlust wearing the same clothing as depicted in the CCTV footage. The offender’s shirt was also observed to be smeared with dark red blood stains.
The offender confirmed his identity by producing his ACT driver’s license.
At about 12:03am on Sunday 19 December 2021, the offender was arrested and conveyed to the ACT Watchhouse where he was ultimately granted police bail.
The primary victim underwent surgery to correct his broken jaw, requiring a plate and four screws to be inserted to repair the injury. The laceration to the back of the primary victim’s head required a number of sutures to close the wound. Photos of the injuries sustained by the primary victim are contained in the Crown Tender Bundle.
Victim Impact Statements
Two Victim Impact Statements were tendered. The first is the Victim Impact Statement of the primary victim. It includes the following:
My friends thought I died when I was hit … I was in hospital for 4 days. My body was too sore. Due to the injury on my jaw, I could not eat solid food for 2 months. Four screws and a plate had to be placed into my jaw.
I lost 15 kilograms in weight because I couldn’t eat properly. It is still hard to eat food. I still can’t eat hard food. My jaw is never the same again. My right side of the face is still swollen. The injury has affected my speech. I am still on medication to manage the pain in my jaw. I’ve kept some broken bits of my jaw with me.
I also have a permanent scar from the incident.
It has been financially stressful. I couldn’t work for two to three months after the incident. My boss wasn’t happy that I couldn’t work and so I lost my job. I owe the hospital about $15,000 for surgery and don’t know how to pay it.
While in recovery, I could not engage in my studies in marketing either for a period.
It has also affected my sleep. The pain is most noticeable around mid-night, and I can’t sleep on the side the jaw was broken. Since the incident, I drink and smoke because of the stress. I never smoked before the incident.
It has been very difficult for me. It has left me unhappy and depressed. I don’t have any family here in Australia to support me and they don’t know that this has happened to me. I can’t tell my family because they thought Australia is a safe country and they would be disappointed in that. I no longer feel safe to go out at night or to go to any pubs anymore.
The second Victim Impact Statement is from the secondary victim.
I had pain near my ribs … I took two days off work because of this. I had to return to work quite soon after the incident because I have to support my two kids. The police said I should go to the hospital to check my injuries, but I didn’t go because it is too expensive.
I am now scared to walk out at night and freak out if I hear loud voices and sounds.
The Court recognises the serious and long-lasting effects of this crime on the primary victim. The court acknowledges the significant impact that the offences have had on both victims, and the Court further acknowledges the importance and depth of what both victims have expressed in their statements as to the repercussions for them both. It goes without saying that the crimes should never have occurred.
List of Exhibits
The following exhibits were tendered in evidence:
(1) Crown Tender Bundle, containing the agreed statement of facts, criminal history, pre-sentence report, victim impact statement of the primary victim, and CCTV footage depicting the offending.
(2) Supplementary Crown Tender Bundle, containing, in addition, the hospital medical records of the primary victim, a bundle of photographs depicting the primary victim’s injuries, and a victim impact statement of the secondary victim.
(3) Defence Tender Bundle, containing a Psychological Assessment Report under the hand of Dr Danielle Clout, letters of support from the offender’s mother, father, two friends, a colleague, and the offender’s Priest, a letter from Directions ACT regarding the SMART Recovery Program, a letter from Directions ACT regarding individual counselling, Confirmation of Referral to EveryMan, Medical records regarding the offender’s hand injury, a Patient Health Summary, and a Referral to a Psychiatrist for ADHD.
The CCTV footage was viewed by the Court at the sentencing hearing.
Summary of Evidence given by the Offender
The offender gave sworn evidence in the witness box.
The offender stated upon watching footage of the attack, he felt like a “horrible person”. He stated that he doesn’t know the person on the footage, that he doesn’t know who that was that night. He further stated that when watching the footage, he felt sick to his stomach. The offender indicated that he feels “horrible” and still hasn’t forgiven himself for inflicting the injuries upon the primary victim. He indicated that he wants to engage in the process of restorative justice to apologise and tell the victims how sorry he is, face to face, if possible. The offender indicated empathy for the primary victim and the pain he inflicted upon him, saying that he can only imagine what the primary victim went through and how he was feeling. The offender was clearly emotional when recounting this to the Court.
The offender said he felt ashamed telling his colleagues about his offending. The offender recounted his close relationship with his grandparents in Paraguay, and said the “hardest part” was having to tell his grandparents about his offending conduct.
The offender told the Court that he is extremely sorry for what he did and the pain he caused, and he is “doing everything [he] can to make sure that never happens again.”
The offender told the Court that he broke his hand as a result of his offending conduct. The offender received surgery for his broken hand on 28 December 2021, and was unable to work as a result of his injury until approximately 27 February 2022.
The offender did not receive any income protection insurance as a result of his injury. The offender was accepted for JobSeeker, but noted that he did not receive any payments. As a result, the offender was living off his savings.
The offender accepted that at the time of his offending and beforehand, he was drinking a lot of alcohol.
The offender stated that he has been attending the SMART Recovery program on Wednesday nights and has cut back his drinking, saying it has been “extremely hard”.
The offender stated that he hasn’t been out since the incident. He has started going back to the gym, “swapping the drinking with something that benefits me”.
The offender accepted that rehabilitation and managing his drinking will be a challenge, but he is willing and prepared to do what is required to progress his rehabilitation.
Objective Seriousness
The objective seriousness in respect of an offence of recklessly inflicting grievous bodily harm is to be assessed by reference to the conduct of the offender and the associated degree of recklessness, together with the nature of the grievous bodily harm to the victim: R v Bandy [2018] ACTSC 261; R v Sharma [2016] ACTSC 180 (R v Sharma); R v Myles [2017] ACTSC 194 (R v Myles); R v Butters [2019] ACTSC 143. The circumstances of the offending are also relevant: McCullough v The Queen (2009) 194 A Crim R 439 at [37].
In the present matter, the primary victim was attempting to defuse a verbal argument between the offender and his friend, the secondary victim, when, without warning, the offender struck the primary victim with a right uppercut style punch to his chin, delivered with such force as to render the primary victim unconscious and cause him to fall backwards onto the concreted car park and hit his head.
The assaults followed what was ostensibly the consumption of a large amount of alcohol.
The offender initiated a violent attack. The offender did not render any assistance to the primary victim. Instead, he assaulted the secondary victim.
A punch to the head is a recognisably dangerous act due to the vulnerability of that part of the body. Additionally, the incident took place within a concreted car park, where there was a strong likelihood of the victim striking his head on a very hard surface.
The victim’s injuries consisted of the following:
(a) A fracture to the lower right mandible;
(b) A subluxation of the left temporomandibular joint;
(c) Two broken teeth of which one was removed during surgery;
(d) A laceration to the back of his head (crown left side); and
(e) Facial bruising
The injuries suffered are plainly relevant to the assessment of the seriousness of an offence of violence, as underlined by Gaudron J in Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [29].
The most serious of these injuries was the fracture to the right mandible which required surgery under general anaesthetic and necessitated the insertion of a plate and four screws to repair the damage. The primary victim remained in hospital for 4 days and could not eat solid foods for some 7-8 weeks. The ongoing physical, psychological and financial impacts of this injury are detailed in the primary victim’s Victim Impact Statement.
The prosecution noted the act was not premeditated per se and did not involve the use of a weapon.
Certain considerations under the Crimes (Sentencing) Act 2005
Nature and circumstances of the offence: s 33(1)(a); Course of conduct: s 33(1)(c); Degree of responsibility of the offender: s 33(1)(i)
The circumstances of the offence involved an assault upon a victim who was under the influence of alcohol in the late evening at a licenced entertainment establishment.
The two victims were outside the establishment when approached by the offender, the co-offender, and a third male.
The seriousness of the actions of the offender were uncalled for. The primary victim suffered significant injuries and required surgery under general anaesthetic.
The prosecution correctly submitted that the punch was to a vulnerable area of the body, the victim’s head, and further submitted no other apparent aggravating factors were present.
The prosecution submitted that the transferred charge of common assault is a rolled-up, course of conduct charge, and must be sentenced in this light: see R v John [2017] ACTSC 144 at [106]-[107]; and R v Forrest (No 2) [2017] ACTSC 83 (R v Forrest (No 2)) at [161]-[165].
Resultant injury, loss and damage: s 33(1)(e); Effect on victim, victim’s family and those who may make a victim impact statement: s 33(1)(f)
The primary victim is a Mongolian national, who came to Australia to study and work. He lives alone in Australia, with the entirety of his family residing in rural Mongolia.
The victim suffered significant injuries and required surgery under general anaesthetic, as well as the continuing ongoing impacts including being able to feel the plate and screws inside his mouth every day. The financial and emotional toll that the offending has taken on him is outlined in the victim impact statement.
Defence submissions
Counsel for the offender properly submitted that the offending was a single punch. It was accepted that it was to a vulnerable area on the victim and it caused him to fall and lose consciousness.
Further, counsel for the offender correctly submitted that the task is to assess the objective seriousness of the impact on the victim and the injuries that he actually had, not “potential possibilities”.
Counsel for the offender submitted that the punch was not premeditated, noting that the offender and his colleagues did walk outside after the victims had walked outside. It appeared on the footage to be a mutual verbal back and forth.
Counsel for the offender submitted that the offending on the primary victim fell into the middle range of objective seriousness. The injuries included a cut to the head requiring stiches, a broken jaw requiring surgery with a plate and screws, and the ongoing pain sequelae. The prosecution did not cavil with this assessment of objective seriousness.
Counsel for the offender submitted that the assault on the secondary victim, involving punches to the secondary victim’s torso, fell into the middle range of objective seriousness. It was noted that the assault involved a number of blows over a short period of time, and there was a period in which the offender went back and re-engaged with the victim. Again, the prosecution did not cavil with this submission.
I accept the submissions from both the prosecution and counsel for the offender as to objective seriousness as set out above. Both sets of submissions are broadly aligned on objective seriousness.
Subjective Circumstances
Pre-Sentence Report
In evidence before me is a pre-sentence report (PSR) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
Personal/Family/Marital Status
The offender is 30 years of age and was 30 years of age at the time of the offences. The offender was born in Paraguay, South America. His parents divorced and re-married in Paraguay before his mother and stepfather relocated with him to Australia when he was 10 years of age. Although the offender was the sole child of his parents’ union, he reported to have eight siblings as the result of a mixture of parents and stepparents.
The offender experienced a loving and supportive upbringing. The offender maintains a strong and positive relationship with all parents and siblings, even though they now all reside in Paraguay. The offender would travel to Paraguay yearly to connect with family, but has been unable to do so for the last few years due to Covid-19.
The offender is single and does not have any dependants.
The offender reported that he attends a local catholic church every Sunday. He also reported that he attends a local gym to maintain fitness for his employment.
Education/Employment
The offender completed his schooling in the ACT in the first term of Year 11. He was subsequently employed by a family friend in a welding apprenticeship. Having realised this was not the career he wished to pursue, he entered into an apprenticeship in tiling and weatherproofing. The offender completed his tiling apprenticeship in 2012 and continued to work full-time with the same employer until 2018 when his employment was terminated due to a driving with illicit drug present in blood charge in NSW.
Since this time, the offender has operated his own business as a tiler and water proofer. The offender has been registered as a sole trader since January 2019, and works six days a week.
Alcohol and Drug Use
The offender admitted to consuming alcohol from about the age of 16, during the time he entered into his apprenticeships. The offender further admitted to drinking to excess at times, and reported that at the time of the offences he could consume a bottle of whisky in one sitting.
The offender started experimenting with illicit substances when he entered the workforce. He started experimenting with Methylenedioxymethamphetamine and then escalated to smoking methylamphetamines when he was 23 years of age. At the time of his offence in 2018, the offender admitted to smoking approximately $250 worth of methylamphetamines per week. Since the offence in 2018, the offender claims to have ceased all illicit drug use.
Since his offending behaviour in December 2021, the offender has sought counselling with his priest and has attended alcohol counselling sessions with Directions ACT. While the PSR noted with concern the lack of evidence of the offender’s engagement with this service, I interpolate to note that evidence is before me by way of letters from Directions ACT confirming the offender’s attendance.
Attitude to Offence
The PSR author noted that the offender reviewed and accepted the police statement of facts. The offender indicated to the author of the PSR report that he had consumed alcohol to excess and believed his actions to be a gross overreaction to the circumstances of the encounter.
He accepted responsibility for the current offences and stated his actions were irresponsible, expressing remorse and a level of empathy for the victim; in particular, his hope for the victim’s full recovery from the injuries sustained.
He expressed his desire to participate in restorative justice.
Psychological Assessment Report
The Defence tendered into evidence a Psychological Assessment Report under the hand of Dr Danielle Clout dated 27 April 2022.
The report elaborates on the offender’s presentation and mental status; developmental history; education and work history; relationship history; alcohol and drug use; health and psychiatric history; attitude towards the offence; and psychometric testing results. The report also contains the response to terms of reference by Dr Clout and recommended sentencing options.
Alcohol and Drug Use
The report by Dr Clout expands on the PSR’s discussion of the offender’s alcohol and drug use. The offender reported that he first tried alcohol when he was 15. He outlined minimal alcohol use until 17, when he began “binge drinking” at parties. He said this increased when he was 18, and he began “getting drunk” every weekend. He admitted that he got a DUI as a learner driver in 2009, which was a “wake up call”. He said he continued to drink on weekends but did not drink and drive again. He reported that his alcohol use increased in mid-2019 during a visit to Paraguay. He identified that he was “drinking every day and having fun” and initially “stayed in the habit” when he returned to Australia. He estimated that he was drinking “a few beers per day” at this time. He said this pattern lasted “a couple of months” before he returned to his previous pattern of weekend drinking.
He reported that he then returned to Paraguay in December 2019. He stated that he planned to stay for several months but had to catch the last plane out during the pandemic. He described it as “crazy” in Paraguay after the pandemic hit and he thought he would be better off in Australia. He identified that when he came back, he was placed on JobKeeper as there was no work due to lockdown, and he was “sitting at home doing nothing.” The offender acknowledged that he became despondent about finding a job that wouldn’t cause further injury to his back and started drinking more heavily. He reported that even after he returned to work, he struggled to cope with being unable to travel to see family.
The offender admitted that his alcohol use remained heavy throughout 2020 and 2021, with the heaviest period of his drinking starting during the last lockdown in August 2021. He reported that JobKeeper was barely covering his bills and he was “bored and stressed”. The offender had multiple unsuccessful attempts at reducing his alcohol use, and reported finding it hard to stop, despite its negative impacts. By December 2021, he reported drinking “at least a six pack per day”, and at least 12 standard drinks of a weekend day.
The offender acknowledged that he was heavily intoxicated at the time of the offences. He told Dr Clout that he can make “silly decisions” and “overreact to situations” when he is intoxicated, and he “badly overreacted” to his younger workmate being hassled. He reported that his alcohol use has “reduced a lot” since the offences. As noted in the sworn evidence, the offender stated that he has completed the SMART Recovery program and is doing individual drug and alcohol counselling through Directions ACT. He identified that he has undertaken approximately five individual sessions. He reported that the focus has been on understanding and reducing his alcohol use and developing better coping strategies. He said his counsellor has told him he is doing “really well”, and he is feeling confident about continuing with the positive changes in his drinking. He expressed a willingness to continue with treatment but said he doesn’t believe he will need it as regularly once he can stop drinking during the week.
The offender reported that he first tried methylamphetamines in approximately 2015, after his family had moved back to Paraguay. He has since ceased using, as discussed in the PSR.
The offender identified that his liver results have been poor on blood tests because of alcohol abuse. He said that this has been a wake-up call.
Attitude Toward the Offence
I note in particular the offender’s attitude to his offending.
The offender expressed guilt and remorse for his behaviour and the offences to the PSR author. He stated that he still feels “really bad” about what he did and has prayed for the victim and his recovery. He acknowledged that he was heavily intoxicated at the time of the offence and had been drinking even before arriving at the club. He identified that he had been “having a good night” with his workmates, when Mr Davis came to him and told him that the primary victim and the secondary victim had “started on him”. The offender reported that he told them to “fuck off and get out of here” but they kept verbally attacking Mr Davis. He said he went and got another drink, and sat down. He acknowledged that he “doesn’t clearly remember a lot” from this point. He recalled that he followed Mr Davis out of the club, and the victims were outside. He said they “wouldn’t stop going off at [Mr Davis]” and acknowledged that he “snapped”. He admitted that he punched the primary victim and “swung at” the secondary victim and then subsequently hit him. He recalled security coming out and the secondary victim “having a go” at Mr Davis again. He said he vaguely remembers attacking the secondary victim.
The offender acknowledged that even though he was “super pissed off” that they were harassing Mr Davis, he should have “walked away”. He admitted that there is “no way” he would have overreacted like that if it wasn’t for his level of intoxication. He reported that he “doesn’t like violence” and it makes him “feel like shit” to know he has hurt someone like that. He described himself as someone who is usually “pretty calm and level-headed” when he is not drinking and said he tries to be a good person. He stated that he has worked hard to address his drinking and would walk away if he encountered a similar situation. He expressed a positive attitude to personal change and said he has many friends who are supportive of him reducing his alcohol use. He said he knows he needs to continue to use healthier coping strategies for managing stress to avoid a relapse. He reported that he is also attending church regularly and his faith is an important part of his rehabilitation.
Response to Terms of Reference by Psychologist
At the time of the offence in December 2021, the offender reported experiencing symptoms consistent with DSM-5 diagnoses of Alcohol Use Disorder (moderate to severe) and an Adjustment Disorder with mixed disturbance of emotions and conduct. He identified the onset of the Adjustment Disorder in August 2021, corresponding with the Covid-19 lockdown and a period of unemployment. He described symptoms including hopelessness, worry, tension, and restlessness. He reported a significant increase in his alcohol use around the same time and acknowledged that he began drinking more excessively as a maladaptive way of managing his symptoms and boredom. Dr Clout noted that it is likely the offender has met DSM-5 diagnostic criteria for Alcohol Use Disorder since mid-2020, with only the severity increasing in late 2021. Prior to 2020, the offender outlined other periods of Major Depressive Disorder, Stimulant Use Disorder, and problematic binge drinking, suggesting a vulnerability to both mood and substance use problems.
The report noted that the offender’s Alcohol Use Disorder is currently considered to be in early remission, due to the offender’s reduction in his alcohol use since the offence and his engagement in appropriate treatment. Dr Clout reported that during the assessment, the offender’s verbal description of symptoms and the results of psychometric testing also suggested that he is experiencing symptoms consistent with Attention-Deficit/Hyperactivity Disorder in adults. Further specialised psychiatric assessment was recommended to determine whether ADHD is implicated in the offender’s clinical picture, as appropriate treatment will reduce the risk of relapse with respect to his Alcohol Use Disorder.
The offender reported symptoms consistent with both an Adjustment Disorder (with mixed disturbance of emotions and conduct) and Alcohol Use Disorder. Based on his self-report, the offender’s Alcohol Use Disorder partly functioned as a maladaptive coping strategy, in response to his emotional symptoms and the boredom associated with his employment loss during lockdown. While the report notes that the diagnoses exist independently of each other, the offender acknowledged that excessive drinking worsens his mental health, suggesting a bi-directional relationship between the two diagnoses. The report noted that the offender also presents as someone highly vulnerable to substance abuse problems. The report further noted that this may be associated with the ADHD symptoms outlined during the interview, as the report states that untreated adult ADHD contributes to a significantly increased vulnerability toward substance use disorders.
In terms of whether the offender’s ability to exercise appropriate judgment was impaired by the issues identified above, the report noted that the offender acknowledged that he was highly intoxicated at the time of his offences. The report noted that as alcohol intoxication significantly impairs decision-making skills, it is likely this contributed to his behaviour, particularly given there is no evidence of aggressive behaviours outside this context. The offender also acknowledged that he is more likely to make poor choices and overreact to situations when he is drinking.
In terms of whether the offender’s ability to make calm and rational choices and to think clearly was impaired, the report notes that these can also be attributed to his level of intoxication.
The report notes there is no evidence of any repeated problems with aggressive behaviours or anger management occurring outside of episodes of excessive alcohol use. The offender acknowledged that alcohol use can lead to overreacting to situations and poor social decision-making. The report noted that he is unlikely to be at any foreseeable risk of harm to others, presuming he can continue to address his Alcohol Use Disorder.
The report identified that the offender would be able to comply with conditions including attending therapeutic, medical, and corrections appointments. The offender reported to Dr Clout a willingness to engage in recommended treatment. The report notes that there do not appear to be any significant barriers impacting the offender’s ability to cope with these pressures. The report notes that from a mental health perspective, the offender would also be able to complete community service obligations.
The report recommended that the offender continues to engage in specialist drug and alcohol treatment to address his Alcohol Use Disorder. Given the repeated nature of his substance use disorders, and the recent severity of his Alcohol Use Disorder, the report recommended that the offender continue to engage in monthly sessions with either Directions ACT or a private psychologist for a minimum of 24 months. This recommendation was made as the report noted that some research suggests that the period from 12-24 months following remission from a substance use problem is the time of greatest vulnerability to relapse. The report then noted that in the event the offender experiences a further relapse with respect to his Alcohol Use Disorder, an intensive day program or residential treatment program may be required.
The report recommended that the offender complete a brief anger management program, such as that run by EveryMan. Although the offender did not report any aggressive behaviours or anger problems that regularly cause issues for him, the report notes that he would benefit from increased understanding and psychoeducation around managing anger. This is particularly relevant for individuals who report symptoms of ADHD, which is often associated with reduced behavioural control.
In relation to his reported ADHD symptomatology, Dr Clout recommended further specialist psychiatric assessment to determine whether ADHD is implicated in the offender’s clinical picture, as appropriate treatment (either pharmacological or psychological) will reduce the risk of relapse with respect to both mood and substance use disorders.
Recommended sentencing options
The PSR noted that the offender is a 30-year-old male with no history of offending in the ACT and a brief history of offending in NSW. He currently has stable accommodation, familial support (albeit from a distance), and owns and operates a successful sole trading business as a tiler and water proofer. The offender has been isolated from his family and has not been able to travel to Paraguay since the onset of the Covid-19 outbreak.
The PSR author noted that the offender expressed remorse and empathy towards the primary victim.
The PSR stated that the offender is suitable for a low level of intervention by ACT Corrective Services, commensurate with the assessed risk. The PSR noted that if supervision were imposed, it is recommended a further condition, that supervision be only for the period deemed necessary by ACT Corrective Services, be included, and appropriate referrals to other agencies be made. The PSR further noted that although the offender appears to be suitable for a Community Service work condition as per section 90 of the Crimes (Sentencing) Act 2005 (Sentencing Act), is it considered that he would have a limited capacity to complete such an order at this time due to his employment.
The PSR also noted that the offender had been assessed as suitable for an Intensive Correction Order (ICO) and the offender had signed an undertaking to comply with all the obligations of an ICO. The PSR further recommended that if the court was minded to impose an ICO, it should contain additional conditions of abstinence, including alcohol, and engagement in mental health, alcohol and drug assessments, counselling, treatments or programs as directed by the Director-General.
Section 33 Crimes (Sentencing) Act 2005
Cultural background; Character; Antecedents; Age; Physical and mental condition: s 33(1)(m)
The offender’s minimal criminal history, which does not include any prior violent offences, is a relevant factor.
Remorse: s 33(1)(w); Restorative justice: s 33(1)(y); Reparation: s 33(1)(h)
It is clear that a plea of guilty is not necessarily indicative of remorse: Miles v The Queen [2014] ACTCA 41 at [40]. However, in the present matter, the prosecution noted that the offender has genuinely expressed remorse. The prosecution correctly does not cavil that the offender is contrite for what has occurred.
I note that an order has been made for the offender to commence restorative justice. Such a process is contingent upon acceptance by the victim to engage in restorative justice.
Was offender affected by alcohol/ drugs; how offender became affected: s 33(1)(p)
The prosecution noted that the offender was significantly affected by alcohol at the time of the offending. This impaired his judgement and decision-making.
The prosecution noted that it is stated in the Psychological Assessment Report prepared by Dr Clout that throughout November and December 2021, the offender was drinking at least a six pack a day, and at least 12 standard drinks of a weekend day: at [15].
The offender further acknowledged to Dr Clout that he had been “drinking a lot”, and at the time of the offence, was heavily intoxicated: at [16].
Dr Clout opined that the offender was symptomatic of a moderate to severe Alcohol Use Disorder, meeting the specific DSM-5 criteria for that condition since mid 2020 and increasing in severity in late 2021.
The prosecution correctly submitted that the fact that addiction causes or contributes to offending behaviour does not of itself mitigate.
The circumstances underlying an addiction may provide a basis for mitigation; for instance, addiction arising from medical treatment or from an introduction to drugs at an age before informed choice could be made: R v Forrest (No 2) at [130] per Refshauge J.
This is not such a case.
Letters from referees
Counsel for the offender tendered six letters from the following individuals:
The offender’s mother
The offender’s father
Two of the offender’s friends
The offender’s priest
The offender’s colleague
The letters describe the offending as out of character for the offender, and detail the offender’s feelings of remorse.
The offender’s mother noted that when the offender told her about this incident, he sounded regretful and sorry. She said that she could “hear his remorse for having reacted in such an impulsive and explosive way”, recognising that his alcohol intake influenced his reaction.
The offender’s father noted that when the offender called him to tell him about the incident, he could sense that he was “scared, hurt, remorseful, worried and distressed [about] how the consequences of this incident could impact … his future”. He told his father than he was very sorry and that if he could go back in time, he would not do it again.
A friend of the offender described the offender as a positive influence in her life. She described the offender as a “kind and thoughtful person [who] has never shown signs of being a violent person.” She described the offending behaviour as very out of character. She noted that the offender contacted her the morning after the incident and was extremely distressed and concerned for the others involved. She noted that herself and the offender have discussed what happened multiple times since then and the offender has continued to acknowledge that what he did was wrong and has always shown genuine remorse for his actions. She noted that after having viewed the incident [on CCTV], the offender expressed feeling sick at seeing himself and what he had done.
Another friend described the offending as a big surprise and also described it as “very out of character” for the offender. He noted that it is clear to him that the offender felt immediate regret for his actions and for causing harm to another.
The offender’s priest noted that the incident has had a profound impact on the offender as he has had time to reflect upon his actions and the consequences of those actions on the person affected. The letter noted that the offender has shown a deep sense of remorse and contrition and has changed his behavioural patterns and socialising as a consequence of the offending.
A colleague of the offender said that the offender was shaken, noticeably teary and upset when explaining the incident to him. He noted that he has seen this isolated incident change the offender, and has witnessed firsthand how remorseful the offender is, from his concern for the victim and their well-being to being less carefree in his interactions with others, withdrawn, and his concern about the legal process.
I take these references into account on sentence.
Remorse
The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v The Queen [2010] NSWCCA 1 (Butters) at [18].
In this case however, the offender has given evidence of remorse before the court. I accept that the offender is remorseful.
Intensive Correction Order Assessment Report
The ICO assessment report is part of the PSR. The PSR concludes that the offender is suitable for an ICO.
Criminal History
The offender has a limited criminal history relating to driving offences in NSW.
The prosecution submitted that the offender’s criminal history is minor and that it is not particularly relevant to this sentencing exercise, and that the offender should be afforded the appropriate leniency for such antecedents.
I accept that the offender is a person of prior good character in relation to offences of violence.
Plea of Guilty
A plea of guilty was indicated at the 2nd Mention, before provision of the brief of evidence. The prosecution correctly submitted that such a course taken by the offender is of utilitarian value to the criminal justice system. A discount is appropriate in the circumstances.
Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
A discount imposed pursuant to s 35 is a discretionary matter: Cranfield v The Queen [2018] ACTCA 3 at [37]; and Heard v The Queen [2015] ACTCA 6 at [62].
The prosecution submitted that as the plea of guilty was entered very early, and therefore no provision of a brief of evidence was required, this cannot be characterised as anything other than a very early plea and a discount is warranted for that course.
Counsel for the offender submitted that a discount of 25% is appropriate for the early plea of guilty.
The prosecution did not cavil with a discount of 25%.
Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate.
Comparable Cases
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 committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
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].
I was referred to the following cases by the prosecution:
(c)In R v O’Brien [2022] ACTSC 86 (R v O’Brien), the offender pleaded guilty to a charge of recklessly inflicting grievous bodily harm, following the provision of a brief but prior to committal. In this matter, both the offender and the victim were at a pub and had drunk to excess. The offender took offence to the victim passing threats and abuse and punched the victim, who was seated and defenceless. The victim fell to the ground where the offender continued to punch the victim a further seven or eight times. The victim broke his left mandible, which required the insertion of four screws and a plate, as well as breaking several teeth.
The offender had already spent 50 days in custody for this offending. The offender’s unique and compelling subjective circumstances were taken into account on sentence. The offender had moved to Sydney and acted as a primary carer to his sister, who was suffering from significant mental health problems. The offender’s family experienced the death of one of the offender’s sisters who fell overboard a cruise ship in 2006, followed by the breakdown of their family and the suicide of their grieving father. The offender was sentenced to a suspended sentence for a period of nine months and two weeks, taking into account the period of time he had spent in custody, and the circumstance that an Intensive Correction Order would necessitate the offender to move back to the ACT.
(d)In R v Daniel (No 2) [2021] ACTSC 117 (R v Daniel), the offender went to trial on a charge of recklessly inflicting grievous bodily harm, which he was ultimately found not guilty of. The offender entered a plea of guilty to the statutory alternative charge of cause grievous bodily harm, which carries a maximum penalty of five years imprisonment. The offence occurred in the context of some tension between two groups of people at a licenced premises over the use of pool tables. The offender was standing next to the victim. The offender turned to the victim, grabbed the front of his shirt with his left hand, and punched the victim to the left side of his face with his right hand. He then struck the victim to the throat area. The victim immediately fell backwards to the ground, unconscious. The victim suffered a severe traumatic brain injury and was hospitalised for 75 days.
The offender had no criminal history and was of prior good character. He had some drug and alcohol use but it did not contribute to the offending in a significant way. The offender was working full time as an electrician and assessed as a low risk of reoffending. This Court sentenced the offender to three years and six months imprisonment to be served by way of Intensive Correction Order with an additional 500 hours of community service work.
Counsel for the offender submitted that R v Daniel was more objectively serious because of the injuries suffered by the victim.
(e)In R v Vardai [2020] ACTSC 297 (R v Vardai), the offender was charged with recklessly inflicting grievous bodily harm. An assault occurred during the course of a verbal argument between two people under the influence of drugs and alcohol. The offender threw one punch which knocked the victim to the ground. The victim suffered the following injuries:
a. Fracture of left angle of mandible with involvement of the 38th dental alveolus (left lower wisdom tooth);
b. Occipital scalp haematoma; and
c. Concussion/middle traumatic brain injury.
The offender had no criminal history, an unremarkable upbringing, was engaged in full time employment and without ongoing drug or alcohol use problems. In sentencing, Robinson AJ noted that the assault was out of character and a one-off incident. The offender was sentenced to 13 months and 15 days imprisonment to be served by way of Intensive Correction Order with an additional 100 hours of community service work.
Counsel for the offender submitted that the injuries suffered by the victim in R v Vardai were objectively more serious than the facts the Court is sentencing on in the present case.
(f)In R v Lacey [2020] ACTSC 241 (R v Lacey), the offender was charged with causing grievous bodily harm contrary to s 25 of the Crimes Act, which carries a maximum term of 5 years imprisonment. The offender entered an early plea of guilty. On his way from one nightclub to another in Civic at 3:40am, the victim asked a group of males for a light for his cigarette. The offender was one of these males. Another in the group teased the victim by holding a lighter very close to his skin. The victim pushed the lighter away. A group member slapped the victim in the face and the offender pushed him from behind. The offender followed the victim and subsequently punched him in the jaw with his left hand. The victim immediately lost consciousness and fell to the ground. The victim suffered:
a. A moderate to severe traumatic brain injury;
b. A left epidural haematoma;
c. A left temporal subarachnoid haemorrhage with a maximum depth of 9mm;
d. A hairline base skull fracture; and
e. A right-sided temporo-occipital scalp haematoma.
The victim was in hospital for 25 days and for a period after he could not drive, live independently or work. He lived with the ongoing impacts of an acquired brain injury. The offender was 32 years of age and was subject to a Good Behaviour Order for an assault at the time of offending. The offender was a binge drinker and suffered from anxiety for which he was medicated. He was assessed as a low-medium risk of reoffending. The offender was sentenced to 27 months imprisonment to be served by way of an Intensive Correction Order with an additional condition that he undertake 240 hours of community service work.
Counsel for the offender submitted that the facts of R v Lacey are more objectively serious than the present facts. The victim suffered a fracture to the left angle of the mandible and the victim also suffered concussion and middle traumatic brain injury. The victim was hospitalised for 25 days for a period after which he could not drive, could not live independently and could not work. He had ongoing impacts from the acquired brain injury.
(g)In R v Chapman [2018] ACTSC 57 (R v Chapman) the offender was charged with recklessly inflicting grievous bodily harm. The offence took place in the late hours of a Saturday evening at Mr Wolf nightclub in Civic. The offender struck the victim without warning or provocation on the face with his right arm, causing the victim to stumble backwards and fall on the floor. The victim suffered a broken jaw and was discharged from hospital after two days. The offender initially entered a plea of not guilty, however this was on the advice of his solicitor so as to determine whether the nature of the injuries was such as to amount to grievous bodily harm. His guilty plea, on the third mention, was held to have significant utilitarian value, warranting a 25% discount. The offender had a criminal history including violence. Mossop J found that an Intensive Correction Order was not suitable due to the offender living interstate. His Honour considered that on the facts of this particular case, it was appropriate that the sentence be wholly suspended. However, having regard to the gravity of the offence, his Honour noted that was only possible if a significant obligation to perform community service was also imposed. The authors of the offender’s PSR report assessed the offender as being at a low risk of re-offending and unlikely to benefit from a period of supervision. The offender was sentenced to 15 months imprisonment wholly suspended upon the offender entering into a Good Behaviour Order for 30 months, including a condition to complete 300 hours of community service work.
In the present case facing the Court, the pre-sentence report assessed the offender as suitable for a low level of intervention by ACT Corrective Services. It is noted that the offender has been assessed as suitable for an Intensive Correction Order and has signed an undertaking to comply with all the obligations of an Intensive Correction Order.
(h)In R v Myles, the offender was charged with recklessly inflicting grievous bodily harm. The offender was intoxicated and attended licensed premises in Civic with his then-partner and three others. At about 2:00am the offender's partner greeted the victim, leaning over to give him a quick hug. The offender mistakenly concluded that the victim was his partner's former boyfriend. He believed that his partner and the victim had “cheated on him”. The offender raised his right arm and punched the victim in the lower right jaw with a closed fist. Although it was forceful, the punch did not cause the victim to fall to the ground. The victim’s jaw was fractured in two places and required surgery. He also suffered from a psychological injury. The offender at the time was 23 years old, and did not have a significant criminal history, however he did have a history of substance abuse and was voluntarily undertaking intervention for alcohol abuse. He was otherwise of good character. The offender pleaded guilty at the third mention and the utilitarian value of the plea was found to be high, warranting a 25% discount. The offender was sentenced to one year and 10 months imprisonment to be served by way of an Intensive Correction Order with an additional 249 hours of community service work.
In R v Sharma, the offender was charged with recklessly inflicting grievous bodily harm. The offender was intoxicated and had a verbal argument with two men who were standing outside a convenience store in Braddon. The offender threw a punch at the victim who was standing with his hands in his pockets. The punch hit the right side of the victim’s jaw knocking him unconscious and causing him to fall to the ground and hit his head. The victim suffered a fracture of the lower jawbone requiring surgery and hospitalisation. He also suffered psychological effects. The offender was 20 years old. He had no criminal antecedents, and the offence was out-of-character. The plea of guilty was taken following the committal of the offender to the Supreme Court for trial and when the matter was listed before the Registrar for directions, for which the offender received a 25% discount. Elkaim J sentenced the offender to 27 months imprisonment, suspended after nine months. The sentence was subject to an appeal by the offender to the ACT Court of Appeal, citing manifest excess, but the appeal was dismissed.
Counsel for the offender referred to the following case with regard to the appropriateness of a suspended sentence:
(a)In R v Carmody (No 3) [2017] ACTSC 60 (R v Carmody), the offender had been previously convicted of an offence of recklessly inflicting grievous bodily harm. The appeal raised issues regarding the imposition of suspended sentence of imprisonment.
Parity
The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48].
The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32], Lowe v The Queen (1984) 154 CLR 606, and Petterson v The Queen [2013] NSWCCA 133 at [43].
On 12 April 2022, the co-offender, Lachlan Davis, was sentenced by Chief Magistrate Walker in respect of two charges of common assault, particularised as the dragging to the ground of the secondary victim and the kick to his back, and the push with both hands. For both counts, he was convicted and fined $750 with three months to pay. Two 12-month concurrent Good Behaviour Orders were also imposed.
The prosecution submitted that, although there is a co-offender in the matter, his two charges of common assault were significantly less serious and not analogous to the instant matter. It was submitted that the charges and criminality of the offending between the two are too dissimilar for the Court to take parity into account as a sentencing factor.
In sentencing the offender, I take into account the principles of parity in accordance with the authorities outlined above and note the different charges.
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. 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. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
I note a referral to restorative justice has been made in relation to both offences and this is a relevant consideration under s 33 of the Sentencing Act. The parties do not wish to await the results of the restorative justice process.
I note that counsel for the offender submitted that the offender has a current capacity to pay $3,000 over a 12-month period towards the primary victim’s hospital bills. This is a matter that will be dealt with through the victims of crime compensation process.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served, fully suspended, or could be served by way of ICO, including community service work as a condition.
The following purposes of sentencing are engaged in the present matter: general deterrence, denunciation, recognising the harm to the victim, and rehabilitation. The prosecution accepted that there is a lesser need for specific deterrence in this case, as the offence appears to be out-of-character and may be unlikely to be repeated given the offender’s experience with the instant matter and the criminal justice system. The lack of criminal antecedents assists with respect to likely prospects of rehabilitation and an offender’s expressed desires for rehabilitation: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [64].
General Deterrence
General deterrence is important in this matter. There is a high prevalence of this court dealing with the infliction of grievous bodily harm by young men at or near licensed premises: see R v O’Brien Page 6 of 11 [2022] ACTSC 86 at [18]; R v Sharma at [35]; and R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at [103]
Relevantly, R v Sharma involved an offender being sentenced for a ‘one punch’ attack. The offender had pleaded guilty to a single charge of recklessly inflicting grievous bodily harm. Elkaim J stated at [33]:
There is of course, in addition to the interests of the offender, the very significant considerations which must reflect society’s abhorrence for attacks of this kind. These attacks are often called “coward punches”. This is an emotive term but one which is a natural product of events as seen on the CCTV footage.
I underline the importance of recognising that our society abhors attacks of this nature. The extremely serious nature of the punch is clear from the CCTV footage.
In Pattalis v The Queen [2013] NSWCCA 171, Hoeben CJ at CL said at [23]:
Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties.
I underline that general deterrence is undoubtedly important in this case. I also underline that the court sentences for what actually occurred as opposed to what injuries might have resulted. The court sentences for the injury in this case, not for “potential possibilities”, as submitted by counsel.
Rehabilitation
Rehabilitation is an important consideration having regard to the offender’s remorse, and previous good character. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
I also note the following observation of Murrell CJ in R v Hill [2016] ACTSC 310 at [48]:
Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community.
On the evidence, the offender’s prospects for rehabilitation are very promising. Counsel for the offender submit that the offender is taking positive steps to rehabilitate, including to address his underlying anger issues and drinking problem. The offender has not been out to nightclubs or bars. The offender has undertaken a referral to EveryMan, although this has not yet progressed. He has attended SMART Recovery Sessions, totalling 10 group sessions and 4 individual sessions. The offender stated in sworn evidence stated that through these sessions, he has learned the impact alcohol can have on a person, and how it can cloud judgment and his ability to make the right choices, and affect his health. He has ongoing full-time employment, stable accommodation, and supportive friends and family, all of which speak to his rehabilitative prospects.
The prosecution submitted that the offence appears to be out-of-character and may be unlikely to be repeated given the offender’s experience with the instant matter and the criminal justice system. The lack of criminal antecedents assists with respect to likely prospects of rehabilitation and an offender’s expressed desires for rehabilitation: Cotter v Corvisy at [64].
Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19].
Section 10 threshold
The prosecution submitted that nothing other than a sentence of imprisonment is warranted in the circumstances per s 10(2) of the Sentencing Act. This is correct. The question is how it should be served.
Sentencing for multiple offences
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.]
Full time imprisonment/ Intensive Correction Order/ Suspended Sentence
As I have indicated above, imprisonment is inevitable. The question is how the imprisonment is to be served.
Ultimately counsel for the offender submitted that a suspended sentence was appropriate rather than an Intensive Correction Order.
As outlined above, the offender has been assessed as suitable for an Intensive Correction Order.
Counsel for the offender further submitted that a fully suspended sentence was appropriate on the facts of this case and would meet all the purposes of sentencing.
Counsel for the offender referred to the case of R v Carmody (No 3) at paragraph 75:
It is important to note that, as the courts have made clear, even a suspended sentence of imprisonment is, while obviously more lenient than a sentence of full-time custody, still a sentence of imprisonment. See Davey (1980) 2 A Crim R 254 at 262. See also R v McConkey (No 2) [2004] VSCA 26 at [32], where Eames JA with whom Buchanan JA and Smith AJA agreed, pointed that a suspended sentence is a very significant punishment, which can serve the function of general deterrence, and which may be imposed because a judge considers that it offers the greatest prospect of reformation and, in turn, the protection of society.
Counsel for the offender submitted that the requirements under an Intensive Correction Order are more onerous and more controlling of those people who are under the order than a suspended sentence. On this basis, counsel for the offender submitted that a suspended sentence is more appropriate, taking into account the offender’s subjective circumstances.
Counsel for the offender submitted that the offender does not require the level of strict day-to-day oversight and support which forms part of an Intensive Correction Order.
Further, counsel for the offender submitted that the requirements to go overseas under an Intensive Correction Order are more onerous than under a suspended sentence. Counsel for the offender submitted that the offender’s desire to visit his ageing grandparents in Paraguay meant that a suspended sentence was more appropriate.
Counsel for the offender submitted that a suspended sentence with a good behaviour order would be appropriate, as the offender has the capacity to manage his work hours to incorporate community service obligations as he works for himself.
I consider that community service is required as a consequence of the seriousness of the offense of recklessly inflicting grievous bodily harm.
It is noted that the prosecution submitted imposing an Intensive Correction Order or a suspended sentence would not be falling into appellable error: see CMB v Attorney-General for New South Wales [2015] HCA 9; 256 CLR 346.
Sentence
In R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31, the NSW Court of Criminal Appeal considered the sentencing principles that should apply to alcohol and drug affected offenders who commit acts of violence in public. The Court observed at [103]:
Other decisions of this Court have emphasised that violence on the streets especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell (2007) 177 A Crim R 94 at [29]
It must be recognised by the Court that the offence committed against the primary victim has had a serious and significant impact upon him.
Both the short and long-term consequences of being a victim of these offences must be acknowledged in relation to both victims.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters pertaining to the offender.
The appropriate sentence for inflict grievous bodily harm is 32 months of imprisonment reduced to two years imprisonment on account of the plea of guilty.
The appropriate sentence for common assault is 4 months of imprisonment reduced to 3 months on account of the plea of guilty.
The sentences will be served concurrently.
As I noted in R v Elson [2020] ACTSC 264 at [85], it must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a ‘significant punishment, coming second only to a term of full-time imprisonment’: R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed could result in a period of full-time custody.
I underline that in my view an ICO is appropriate in this case rather than a suspended sentence. I have come to this conclusion taking into account all the matters discussed above, including in particular the seriousness of the offence of recklessly inflicting grievous bodily harm, and the view that I have formed that the offender requires the intensive ongoing assistance and supervision available through an ICO, in light of the Pre Sentence Report and the Psychologist’s Report.
I note that in coming to the conclusion that an ICO is appropriate, I have had regard to all the sentencing factors in accordance with s 11(3) of the Sentencing Act, including (a) the level of harm to the victims and the community; (b) the question of whether the offender poses a risk to people in the community, including the victims; and (c) the offender’s culpability for the offence, having regard to all of the circumstances, although I note the section is for sentences of more than 2 years.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of recklessly inflicting grievous bodily harm (CAN669/22) the offender is sentenced to 2 years imprisonment commencing on 24 May 2022 and expiring on 23 May 2024.
(c)In respect of the offence of common assault (CAN12007/21) the offender is sentenced to 3 months imprisonment commencing on 24 May 2022 and expiring on 23 August 2022.
(d)The sentences of imprisonment are to be served by way of an Intensive Correction Order.
(e)In addition to the core conditions of the Intensive Correction Order, the offender is subject to the following additional condition:
i.The offender is to undertake 150 hours of community service work within 24 months of today.
| I certify that the preceding one hundred and eighty five [185] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 27 May 2022 |
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