R v Rujak
[2021] ACTSC 148
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rujak |
Citation: | [2021] ACTSC 148 |
Hearing Date: | 20 July 2021 |
DecisionDate: | 20 July 2021 |
Before: | Burns J |
Decision: | See [12]–[14] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cause grievous bodily harm by unlawful or negligent act or omission – plea of guilty – chokehold – where victim behaving in aggressive manner to patrons – where offender significantly intoxicated – consideration of intended attempt to protect other patrons |
Parties: | The Queen ( Crown) Alexander Rujak ( Offender) |
Representation: | Counsel T Hickey ( Crown) M Kukulies-Smith ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender) | |
File Number: | SCC 284 of 2020 |
BURNS J:
Alexander Rujak, on 11 May 2021 you entered a plea of guilty to one charge of causing grievous bodily harm to Jamie Davidson on 12 January 2020, by an unlawful or negligent act or omission (CC2021/67). It is now my responsibility to sentence you with respect to that matter.
The facts
A comprehensive Statement of Facts has been tendered. It is sufficient for present purposes for me to state that on 12 January 2020, the victim was in the smoking area of the Capital Men’s Club in Fyshwick when he was approached by you. At that time the victim was becoming animated, and you moved behind him and put your arm around his neck in a tight chokehold for about seven seconds.
The victim lost consciousness about that time and you let him go. He then fell unconscious to the ground, striking his head on the concrete. The victim suffered a laceration to his head and a brain bleed requiring hospitalisation and admission to the Intensive Care Unit. A comprehensive Report from Dr Amanda Barry dated 13 November 2020 has been tendered. The Crown accepts that the injury sustained by the victim, in terms of the scale of injuries that would come within the description of a traumatic brain injury, is towards the lower end of the range.
I have no Victim Impact Statement or more contemporaneous medical report indicating the state of health, or the current state of health of the victim, and the extent to which the victim is likely to have any permanent consequences. It is clear, however, that there will be permanent scarring and that the injuries sustained by the victim comes within the definition of grievous bodily harm.
Objective seriousness
I accept on the material before me, including CCTV footage of the incident, that the victim was behaving in an agitated and somewhat aggressive manner towards other patrons at this club. I accept that, in acting in the way that you did, you intended to restrain the victim in circumstances where you believed there was some possibility of his conduct escalating and a physical altercation occurring between him and the two men to whom the victim was talking at that time. In that regard, I accept that what you did was a misguided attempt to protect the other two patrons, albeit that what you did went far beyond what was reasonably necessary in order to protect those persons.
I accept, for the purposes of sentencing, that you did not intend to interfere with the breathing of the victim at the time that you placed your arm around his neck and restrained him. Doubtless, if you had not been so intoxicated, you may well have turned your mind to the prospect that your actions might well have caused some difficulty for the victim in breathing, but I accept that you did not do so on this occasion, primarily for the reason that you were very significantly intoxicated. I also accept that in releasing the victim from your grip in the way in which you did, you were unaware at that point that he had lost consciousness, and as such it was not something to which you turned your mind that he would simply slump to the ground and potentially sustain an injury as he did.
I do accept, however, the proposition which has been put forward by the Crown, that taking hold of the neck of a person in the way in which you did is fraught with danger that the breathing of the victim will be interfered with, or that other delicate structures in the neck region may well be damaged. I also take into account the fact that you only restrained the victim in this way for about seven seconds, and that feeds into my finding that you did not intend for the events to develop in the way in which they did.
Subjective features
I note that you are 38 years of age and you have no prior convictions. A number of testimonials were tendered on your behalf, all of which speak of the fact that this offence is out of character for you. You gave oral evidence about your employment at the Canberra Hospital and a number of those who provided references also referred to your employment. In that regard it is part of your responsibilities to respond to incidents within the hospital where there are perceived threats to patients or members of the staff. The testimonials refer to the fact that you have never been aggressive in undertaking this work and that you are always conciliatory, even in the face of very significant provocation.
I do therefore accept that what happened on this occasion was out of character for you. I also accept that you are remorseful for what occurred. Indeed, there is evidence before me, which has not been contradicted, that you have abstained from alcohol consumption since the date of this offence.
I accept that you have good prospects for rehabilitation. I do not accept that specific deterrence is particularly relevant with respect to sentencing for this offence in these particular circumstances. However, general deterrence must be a significant sentencing consideration, even taking into account the particular circumstances of this offence.
In my opinion the appropriate course is to impose a sentence of imprisonment and to fully suspend that sentence and then to impose a Good Behaviour Order with a period of community service. In determining the appropriate periods of the sentence of imprisonment, the Good Behaviour Order and the number of hours of community service, I take into account that your plea of guilty was an early plea and I will reduce by approximately 25 per cent those aspects of the sentences to which I have referred in order to reflect your early plea of guilty.
Sentence
Mr Rujak, I record a conviction with respect to the offence and you will be sentenced to 10 months' imprisonment, which I have reduced from 14 months in order to reflect your plea of guilty. That sentence will commence today, 20 July 2021, as you have not spent any time in pre-sentence custody and will be fully suspended upon entering a Good Behaviour Order.
There will be a Good Behaviour Order for a period of 12 months commencing today, 20 July 2021, and expiring on 19 July 2022. It will be a condition of that Good Behaviour Order that you are to accept the supervision of the Director-General responsible for adult corrections, or that person's delegate, for that period of 12 months or such lesser period as deemed appropriate by your supervising officer, and you are to obey all reasonable directions of each such person.
In addition, there will be a community service condition requiring you to complete 200 hours of community service within a period of 12 months as directed by an authorised officer. You are to report within 48 hours to Corrective Services for the purposes of facilitating that community service work condition.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 19 August 2021 |
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