R v Stefanac
[2017] ACTSC 415
•30 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stefanac |
Citation: | [2017] ACTSC 415 |
Hearing Date: | 30 October 2017 |
DecisionDate: | 30 October 2017 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – guilty plea – street fight – initial fight unprovoked – excessive self-defence during extended fight – offence inflicted permanent disability on the complainant – tip of finger bitten off – offender otherwise of good character – low risk of reoffending – sentence of imprisonment served by way of Intensive Corrections Order with a period of community service |
Legislation Cited: | Crimes Act 1900 (ACT), s 20 Crimes (Sentencing) Act 2005 (ACT), s 11(3) Magistrates Court Act 1930 (ACT), s 90B |
Cases Cited: | R v Dunn [2017] ACTSC 227 R v EL [2016] ACTSC 241 R v Hidic [2017] ACTSC 307 |
Parties: | The Queen (Crown) Marijan Stefanac (Defendant) |
Representation: | Counsel D Sahu Khan (Crown) J Sabarwhal (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Mark Fleming Lawyers (Defendant) | |
File Numbers: | SCC 258 of 2016 SCC 259 of 2016 |
MOSSOP J:
Introduction
The offender, Marijan Stefanac, has pleaded guilty to the offence of recklessly inflicting grievous bodily harm.
The maximum penalty for the offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years’ imprisonment.
The plea was accepted in full satisfaction of the indictment which also included a charge of recklessly inflicting actual bodily harm and a charge of common assault which was transferred to this court under s 90B of the Magistrates Court 1930 (ACT). On the latter charge the Crown offered no evidence and it is therefore dismissed.
Facts
The incident that gave rise to the offence to which the offender has pleaded guilty occurred in the early hours of the morning of Saturday 6 February 2017. The complainant who was the victim of the offender’s assault had attended the Durham Castle Arms Pub and Grill at Green Square, Kingston, since approximately 11:30pm that Friday night where he had consumed alcohol.
At about 1:25am on Saturday 6 February 2017 the complainant rang his fiancée to give him a lift home.
The complainant’s fiancée arrived at the Durham Castle Arms Pub and Grill in Kingston at approximately 1:35am where she parked nearby and rang the complainant to tell him that she had arrived to pick him up. About five minutes later the complainant exited the Durham Castle Arms Pub and Grill and began walking down Jardine Street towards the offender. The complainant and the offender did not know each other.
As the complainant’s fiancée was driving towards where the complainant and offender were walking she wound down the driver’s side window of her car and called out to the complainant that she had arrived.
The complainant’s fiancée witnessed the offender and the complainant engaging in some sort of conversation. The complainant is alleged to have said to the offender: “Where are we going for a beer?” The complainant’s fiancée later recognised the offender as someone who worked at the Karabar Take Away store in Queanbeyan.
The complainant’s fiancée again called out to the complainant, yelling: “Let’s go, Dennis, come on.”
The offender then punched the complainant using his right fist. The complainant was stunned by the punch, saying to the offender: “Oh my God, why have you hit?” The complainant’s fiancée immediately rang 000 to report the assault.
The complainant kept asking why the offender had hit him while the offender got into a boxing stance and started moving around the complainant with both his fists raised. A physical fight took place. The complainant’s fiancée got out of her car and went to where the fight was taking place saying: “Come on, stop, stop stop! The police are on their way.”
The offender and the complainant did not stop fighting, instead the altercation continued, moving from Jardine Street down Eyre Street towards Howitt Street in Kingston.
During this fight the offender picked up a yellow road sign that was 90cm in length and 45cm in height and struck the complainant with the sign, hitting him around the middle area of his legs. The offender also struck the complainant with a second road sign inscribed with the words “DETOUR AHEAD”, the complainant raised his hand to shield himself and the offender struck the complainant with the sign around the right side of his body and elbows. The offender then dropped the sign and picked up a metal pole which he used to strike the complainant on his chest, stomach and hip region. The blows from the various metal implements used by the offender resulted in cuts, bruises and abrasions to the complainant’s arms, legs and body.
Following these blows the offender and complainant began to grapple with each other, each exchanging blows. At one point during the struggle the complainant placed his right hand over the offender’s face. The offender bit the complainant’s right thumb, resulting in significant lacerations and bleeding to the complainant’s thumb. The complainant pulled his right hand away from the offender’s face and replaced it with his left hand. The offender then bit down on the complainant’s left index finger with enough force to sever 15mm off of the tip of the complainant’s finger. The offender is reported to have spat the tip of the complainant’s finger onto the ground. The finger could not be reattached when the complainant was later treated for his injuries.
The severing of the complainant’s finger caused the complainant “an incredible amount of pain” and significant amounts of blood began to flow from the complainant’s severed fingertip. The complainant started saying: “He bit me finger off! He bit me finger off!” The photographs of the complainant’s hand is quite confronting, showing that the tip of the left index finger has been traumatically severed just passed the first joint.
The offender also bit the complainant on his right elbow and on his chest near the rib area, resulting in injury to the complainant.
The complainant’s fiancée said to the offender: “I’ve seen your face. I know you from somewhere. I’ve got footage. The police are on their way.” After which the offender ran away heading down the right side of Howitt Street in an easterly direction.
A short video of part of the fight was tendered. It was taken prior to the finger biting. It shows the two men grappling with each other, the complainant getting the better of the offender. The offender’s fiancée is asking the complainant to stop, telling him that she had video of the offender already.
The complainant was intoxicated at the time of the events. It is not stated whether the offender was intoxicated.
Subjective circumstances
The personal circumstances of the offender are described in an Intensive Corrections Order Assessment Report as well as in a number of references which were tendered.
The offender was born in 1968 and is 49 years old. He moved from Croatia to Australia at the age of 16. He had a stable and supportive childhood. He has previously been married but was separated from his wife in 2013. He has no dependents. He was educated to Year 12. He has a history of stable full-time employment and no periods of unemployment. He owns a truck which is subcontracted to a construction business. He was previously engaged in the furniture industry and owned his own business for 13 of the 25 years that he was so involved. His friends are “prosocial”. The alcohol use disorder identification test assessed him as low risk. There is no explanation as to whether, or the extent to which, he was intoxicated on the evening of the offence. He has no history of illicit-drug use. He is regularly engaged with golfing activities at the Canberra Golf Club. He owns his own residence.
So far as his attitude to the offence was concerned he said his actions were the result of self-defence although he acknowledged that his violent behaviour was excessive. Although regretting his behaviour he seemed to the author of the report more concerned about the impact of the consequences that he is facing as a result of the offences.
He is assessed as at a low risk of general reoffending and as ready to undertake programs to address his criminogenic risks factors. He was assessed as suitable for community service work and suitable for an Intensive Corrections Order.
Consistent with the Intensive Corrections Order Assessment Report, the four references that were tendered each supported the fact that the offender is otherwise of good character both in his work and social life and that he is otherwise a useful member of the community.
He has a criminal history which involves only driving offences. It includes three drink driving offences the latest of which was 2006.
Objective seriousness
The maximum penalty for the offence is a period of 13 years’ imprisonment. The offender pleaded guilty shortly before his trial was due to commence. That was on the basis of an acceptance that to the extent that he was engaged in self-defence the severing of the complainant’s finger was excessive self-defence.
It is well established that the two key matters to be considered when assessing the objective seriousness of the offences of this type are the culpability of the offender’s conduct and the relative seriousness of the grievous bodily harm sustained by the victim: see R v Hidic [2017] ACTSC 307 (‘Hidic’).
In the present case I would assess the objective seriousness of this offence as being in the lower end of the mid-range of objective seriousness. That is because on the one hand it involves the infliction of a permanent disability upon the complainant. On the other hand it did not involve any injury to the head and, although the initial punches were unprovoked and did not involve self-defence, the biting occurred during a more extended fight where save for the question of it being excessive, the Crown could not rule out self‑defence.
I was referred to a number of cases. R v Dunn [2017] ACTSC 227 involved a punch to the head causing permanent damage to the complainant’s eye resulting in a substantial permanent impairment of vision that had long-term consequences for the victims and which occurred in the presence of police where the offender had a history of previous violent conduct. A sentence of 27 months was imposed which was suspended after 11 months. Counsel for the Crown distinguished the facts of that case from the present.
R v EL [2016] ACTSC 241 involved a disagreement following which the offender picked up a wooden fence paling and hit the complainant which resulted in extremely severe life-threatening injuries to the complainant’s head. The offender had been a child soldier in Sudan and had an extremely troubled childhood. He had previous convictions for offences of violence. The offender was sentenced to imprisonment for two and a half years reduced from three years on account of the plea of guilty. It was to be served by an Intensive Corrections Order.
In Hidic the offender had punched a player upon an opposing futsal team in the head. The victim suffered a fractured eye socket as well as lacerations requiring stitches. The offender was a young man who was otherwise of good character. Having served two months when bail refused he received a sentence of two years and seven months to be served by way of an Intensive Corrections Order as well as 300 hours of community service.
Having regard to the gravity of the offence and the fact that it has resulted in permanent disfigurement of the complainant, I consider that there is no appropriate sentence other than a sentence of imprisonment. The starting point for the conduct is a sentence of two years and six months. I will allow a reduction of 10 per cent on account of the plea of guilty which reduces the sentence to 27 months.
Having regard to the evidence of the otherwise good character of the offender and his assessed low risk of reoffending behaviour I consider that it is appropriate that he serve his sentence of imprisonment by way of an Intensive Corrections Order with a period of community service. In reaching that conclusion I have had regard to the factors in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT). The period of community service must be a substantial one to reflect the gravity of the offending conduct. He is required to perform 300 hours of community service within 27 months.
Orders
The orders of the Court are:
1. The offender is convicted.
2. The offender is sentenced to imprisonment for two years and three months.
3. The sentence is to be served by way of an Intensive Corrections Order in the community.
4. In addition to the core conditions referred to in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT), the following conditions are included in the Intensive Corrections Order:
a.a community service condition that the offender perform community service work for 300 hours within two years and three months;
b.a condition that the offender comply with any direction of an officer of ACT Corrective Services that:
i.he undertake medical treatment or supervision;
ii.he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required; and
iii.he attend such educational, vocational psychological, psychiatric or other programs or counselling.
5. The offender is to report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, by 4:00pm today.
6. Charge CC16/5789 is dismissed.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Tom Häkkinen Date: 6 February 2018 |