R v Smith-Shields

[2020] ACTSC 338

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith-Shields
Citation:	[2020] ACTSC 338
Hearing Date:	12 November 2020
Decision Date:	20 November 2020
Before:	Burns J
Decision:	See [17]–[18]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – trial by jury – good prospects of rehabilitation – consideration of sentencing options – relevance of general deterrence
Parties:	The Queen (Crown) Jese Smith-Shields (Offender)
Representation:	Counsel
T Hickey (Crown)
B Morrisroe (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Sharman Robertson (Offender)
File Number:	SCC 238 of 2019
BURNS J:

1.       Jese Smith-Shields, on 21 October 2020 a jury convicted you of an offence of assault occasioning actual bodily harm. You were originally charged with recklessly inflicting grievous bodily harm, to which the charge of assault occasioning actual bodily harm was an alternative. The jury returned a verdict of not guilty on the charge of recklessly inflicting grievous bodily harm.

2.       It was common ground during the trial that you punched the victim on one occasion to his head on 17 November 2018, causing a broken jaw. It was not disputed that the injury inflicted on the victim would constitute grievous bodily harm.

3.       During the trial, you gave evidence that you were acting in self-defence at the time that you punched the victim. Clearly the jury rejected that proposition. By finding you guilty of the offence of assault occasioning actual bodily harm, the jury was clearly satisfied beyond a reasonable doubt that you were not acting in self-defence.

4.       The jury could have reached this conclusion in three possible ways. First, they may have been satisfied that you did not believe that it was necessary for you to do what you did, in order to defend yourself. Second, the jury may have been satisfied that you had no reasonable basis to form the belief that it was necessary for you to do what you did, in order to defend yourself. The third possibility is that the jury was satisfied of both the first and second possibilities.

5.       As it falls to me to sentence you based upon the bare verdict of guilty on the charge of assault occasioning actual bodily harm, it falls to me to determine the facts upon which I must sentence you. I must be satisfied beyond reasonable doubt of any fact that would make the offence more serious: that is, which would call for greater punishment. On the other hand, I need only be satisfied on the balance of probabilities of any fact mitigating the offence.

6.       I have reviewed the evidence given by the eyewitnesses. It is fair to say that the evidence is not consistent, and there were problems with the internal consistency in the various versions of the events given by several of the witnesses. Some of the witnesses gave evidence that would perhaps support the proposition that you may have genuinely believed that the victim was going to engage in a fight with you.

7.       None of the witnesses went so far as to fully support the version of events which you gave in evidence. One thing, however, is clear to me. If the jury had not been able to reject the version of events which you gave in your evidence, which clearly depicted the victim as the aggressor, they could not have found you guilty of the offence of assault occasioning actual bodily harm.

8.       It was common ground that you only delivered one punch to the head of the victim. If, as you suggested, the victim had charged at your friend, Bailey Loughhead, then head-butted you and charged at you again, it is inconceivable that the jury would not have acquitted you of both offences. There was evidence that the victim sent you an Instagram message sometime before 17 November 2018, which on its face appears to be cast in aggressive language. It is quite possible that this made you concerned about the prospect of a physical altercation with the victim when you came across him on

17 November 2018.

9.       I also accept that you had suffered a debilitating back injury in early 2018, which would have made you concerned about your ability to defend yourself in any physical altercation. You were also to some extent intoxicated.

10.     I am satisfied that these factors fit into an instantaneous decision to pre-emptively punch the victim as an overreaction to the circumstances that existed. I am not satisfied, as suggested by at least one witness, that you came at the victim from behind or from the side. I am satisfied, however, that you were acting aggressively at the time that you punched the victim, and that up to that point, the victim had not head-butted or in any other way assaulted you.

11.     I am satisfied that you quickly regretted what you had done. I have no doubt that you did not intend to inflict serious harm on the victim, but that is the risk that you take when you act as you did and punch somebody to the head. As we see all too frequently, such conduct may have unexpected, unintended and tragic consequences. Luckily the victim did not sustain a fatal injury or brain damage, but I am satisfied that the injuries sustained by the victim continue to affect him and are likely to do so into the future.

12.     I accept that the offence was not premeditated. The Crown placed significant weight on the proposition that you left the scene of the assault without rendering any assistance to the victim. This may be relevant to determining whether you are remorseful for your actions. I am not satisfied that you were aware of the extent of the victim's injuries at the time that you left the area.

Subjective features

13.    You are 22 years old and have no previous convictions. I take into account the character references that were tendered on your behalf. They speak of the current matter being out of character for you, and of how you are not normally an aggressive person. They also speak of the remorse that you have demonstrated for your actions, and your concern for the victim. I accept that these events have weighed heavily on you since they occurred, although of course you are not to be identified as the victim in this matter.

14.     You have strong family support, and I consider it unlikely that you will re-offend in the future. I believe that you have good prospects for rehabilitation.

15.    Your counsel submitted that I should proceed by way of a conviction and a Good Behaviour Order. The Crown submitted that I should record a conviction, impose a sentence of imprisonment and wholly suspend that sentence, and then impose a Good Behaviour Order. Bearing in mind the need to make it clear to others in the community that violence will not be tolerated, and in the light of the very serious nature of the injury inflicted upon the victim, I have determined to impose a suspended sentence of imprisonment with a Good Behaviour Order.

16.     In my opinion, a failure to impose a sentence of imprisonment would result in a sentence that was unduly lenient, and which did not address the need to deter others from this kind of offending.

Sentence

17.    You are convicted of the offence of assault occasioning actual bodily harm (CAN 10011/2019) and you are sentenced to seven months' imprisonment commencing today, 20 November 2020, and expiring on 19 June 2021.

18.     That sentence will be wholly suspended, and there will be a Good Behaviour Order for a period of 15 months from today, 20 November 2020. In the light of all of the circumstances, I do not impose any conditions with respect to that Good Behaviour Order other than the core conditions.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

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