R v Robertson
[2020] ACTSC 325
•4 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Robertson |
Citation: | [2020] ACTSC 325 |
Hearing Date: | 4 December 2020 |
DecisionDate: | 4 December 2020 |
Before: | Elkaim J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cause grievous bodily harm – property damage – common assault –referral to ACAT – need to finalise criminal proceedings |
Legislation Cited: | Crimes Act 1900 (ACT) ss 25, 26, 331 |
Cases Cited: | R v Miles [2016] ACTSC 83 |
Parties: | The Queen (Crown) Michael John Robertson (Offender) |
Representation: | Counsel A Williamson (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 59 of 2020; SCC 60 of 2020 |
ELKAIM J:
On 18 August 2020 the offender pleaded guilty to three charges on an indictment dated 17 August 2020.
The three offences and their maximum penalties are:
(a)Unlawfully causing grievous bodily harm (SCCAN127/2020), contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.
(b)Property damage (SCCAN128/2020), contrary to s 403 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years imprisonment, a fine of $160,000 or both.
(c)Common assault (SCCAN129/2020), contrary to 26 of the Crimes Act. The maximum penalty is 2 years imprisonment.
There is a detailed statement of facts in Exhibit A. In summary these are domestic violence offences. On 19 November 2019 the offender had an argument with his partner’s son. The following day he had an argument with his partner. He struck her to the right side of her face, fracturing her jaw. This is the offence of causing grievous bodily harm.
The victim required surgery which included the fixation of a fracture. A plate and screws were inserted. She was on a pureed food diet for a period of six weeks.
The damaging property offence relates to setting fire to his partner’s residence. There are photographs of the extensive damage caused.
The common assault relates to the interaction with a police officer when the offender was arrested later in the day. By this time he was well intoxicated and particularly difficult to deal with. There wasn’t an actual physical assault but rather the making of serious threats. I regard this with some concern because a police officer, doing his duty in the interests of the public, should be entitled to work without being the subject of offensive threats. This is why although the sentence for the offence will be relatively short, it will not be entirely concurrent.
The offender has a criminal record which is wide-ranging both in the offences and in the places of commission. He has offended both in the ACT and New South Wales. He has a poor record in obeying supervision orders.
The offender was born in Penrith and is one of three children. His father was an alcoholic and the home was exposed to domestic violence. As a result he left home at age 14. He has had assorted employment but not very much of it. He started a handyman business in 2016 but I gather he required supplementary Centrelink benefits.
The offender has four children from two different relationships.
His big problem has been the use of drugs. He attended a rehabilitation program in 2013 which was apparently successful. However he seems to have returned to illicit drugs. He also drinks too much.
His partner is a counsellor whom he met during his own counselling. She was not however his counsellor. She has written to the Court, in effect seeking leniency and endeavouring to explain the problems he was suffering at the time. I find the persistent desire of victims of domestic abuse to have their partners return to them to be most confusing. Nevertheless her dedication to the offender’s welfare must be applauded.
I am however very conscious of the warning given in the pre-sentence report about the offender returning to live with his partner in the absence of significant treatment.
There is a report from Dr Clout, a clinical psychologist. According to this report the offender is suffering from Bipolar I Disorder, Post-traumatic Stress Disorder and Alcohol Use Disorder. She refers to multiple major depressive episodes through his life and the experience of times of manic conduct especially in his early adulthood.
At the commencement of the hearing this morning Ms Musgrove suggested that he be referred to ACAT pursuant to s 331 of the Crimes Act 1900 (ACT). There is no doubt the offender qualifies for such an assessment under the legislation, but I agree with the Crown that to do so would be to unnecessarily delay these criminal proceedings. It is very important that persons are sentenced as soon as possible in order for them to know their immediate future and see a certain end for their incarceration.
The prison authorities will no doubt be cognisant of the offender’s mental health problems. I note he is currently in the mental health unit.
Ms Musgrove said that I should apply what are called the Verdins principles (derived from R v Verdins [2007] VSCA 102; 16 VR 269). The Crown said I should not, and pointed in particular to the absence of evidence that the offending was a product of any mental health condition. It was suggested that it was just as likely that the offender was well intoxicated when he committed the offences. Ms Musgrove responded that he may well have been intoxicated when arrested later in the day, but there was no evidence of intoxication at the time of the offending, thus making it more likely that he was acting under a mental impairment.
There are some admissions made by the offender about being drunk at the relevant time, but there is also the information that the victim ran a dry household making it unlikely he was intoxicated. I tend to think he probably was intoxicated although I do not make a conclusive finding on this point.
I do not think the Verdins principles are applicable here although I do think I can take into account that the offender does have a mental impairment, does require treatment and was at the time of the offending probably suffering from mental health issues, even though they were not necessarily productive of the violence.
The Crown pointed out some comparative cases and suggested that some in particular were more relevant than others. In respect of the grievous bodily harm offence I was especially referred to R v Price [2015] ACTSC 324 and R v Tonga [2015] ACTSC 365 and then to R v Miles [2016] ACTSC 83 in relation to the property damage offence. Ms Musgrove said I should exercise caution in relying on Miles because it related to the offence of arson which carries a greater maximum penalty.
The point is well made although I also agree with the Crown that sentencing should be a product of the particular seriousness of each individual offence. The parties agreed that the two primary offences were of medium objective seriousness. I also agree.
As I pointed out in discussion I find it difficult to comprehend that, generally speaking, damaging property seems to attract more severe punishment than damaging a person. Clearly however that is the intent of the legislature because the grievous bodily harm offence has a maximum penalty of 5 years whereas the property damage offence has a maximum penalty of 10 years imprisonment as well as being possibly combined with a fine of up to $160,000.
The offender is entitled to a discount for his offending which I assess, subject to some rounding off, at 15%.
It is also necessary for me to take into account the provisions of the Crimes (Sentencing) Act 2005 (ACT) and in particular sections 6, 7 and 33. Section 10 says that full-time imprisonment should be a last resort. This offender must remain in custody. Although he has been found suitable for an Intensive Corrections Order, I do not think it is applicable.
I make the following orders:
(a)For the offence of causing grievous bodily harm (SCCAN127/2020), the offender is sentenced to 15 months’ imprisonment (reduced from 18 months) to commence on 20 November 2019 and end on 19 February 2021.
(b)For the offence of property damage (SCCAN128/2020), the offender is sentenced to 15 months’ imprisonment (reduced from 18 months) to commence on 12 July 2020 and end on 11 October 2021.
(c)For the offence of common assault (SCCAN129/2020), the offender is sentenced to 3 months’ imprisonment (reduced from 3.5 months) to commence on 12 September 2021 and end on 11 December 2021.
(d)The total period of imprisonment is 2 years and 22 days to commence on 20 November 2019 and end on 11 December 2021.
(e)I set a non-parole period of 17 months to commence on 20 November 2019 and end on 19 April 2021.
(f)I respectfully recommend to the prison authorities that consideration be given to the offender’s mental health condition and the need for appropriate treatment.
(g)I further respectfully recommend to the Sentence Administration Board that consideration of the offender’s release on parole take into account the appropriateness of residing with his current partner.
(h)I take no further action in respect of any breach offences.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 4 December 2020 |
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