R v Todkill
[2018] ACTSC 182
•13 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Todkill |
Citation: | [2018] ACTSC 182 |
Hearing Dates: | 13 December 2017; 28 February 2018; 13 March 2018 |
DecisionDate: | 13 March 2018 |
Before: | Burns J |
Decision: | See [21]-[23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of causing grievous bodily harm – significant violence – in company – conditional liberty –Pre-Sentence Report – remorse – willingness to participate in restorative justice – psychologist’s report – victim impact statements – testimonials – reasonable to good prospects for rehabilitation – youth – plea of guilty – deterrence – objectives of sentencing – sentence of full-time imprisonment – non-parole period – breach of good behaviour order |
Parties: | The Queen (Crown) Hayden Todkill (Offender) |
Representation: | Counsel Ms R Christensen (Crown) Mr R Davies (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Respondent) | |
File Number: | SCC 284 of 2016 |
Burns J
Hayden Todkill, you have pleaded guilty to one offence of causing grievous bodily harm. The short description of the offence is that you punched the victim on three occasions causing a comminuted fracture of the right jaw. The maximum penalty for the offence of causing grievous bodily harm is five years' imprisonment.
I note that you were first charged with recklessly inflicting grievous bodily harm, which is an offence that carries a penalty of 13 years' imprisonment, on 3 March 2016 in the Magistrates Court. On 14 December 2016 you were committed for trial before this court. On 15 May 2017 your matter was listed for trial on 11 September 2017. On 6 September 2017 negotiations between your legal advisers and the Crown resulted in the Crown filing a fresh indictment with one count of causing grievous bodily harm. On that day you pleaded guilty to the new indictment.
A comprehensive Agreed Statement of Facts was tendered in your sentence hearing. I will not now recite in detail the facts in relation to the offence. It is sufficient to note that the offence was unprovoked in any physical sense. There may well have been some offensive language used by the victim but that language was not directed towards you and the evidence shows that you were never under any potential threat with respect to the victim.
The offence involved significant violence. There were three punches thrown by yourself which had sufficient force to fracture the victim's jaw and also to render the victim unconscious. The grievous bodily harm which was caused to the victim, whilst serious, was not amongst the worst types of injuries that would fall under the description of grievous bodily harm.
I note that you were in company at the time that you committed this offence and also that the offence was committed in a public place. It is a significant aggravating circumstance in relation to the offence that you were on conditional liberty at the time that it occurred.
[Redacted.]
A Pre-Sentence Report was prepared for the sentence hearing. I note that you are currently 22 years old but you were 19 years old at the time of this offence. The author of the Pre-Sentence Report notes that you were exposed to violence perpetrated by your stepfather in your childhood. You are currently a single man with no dependents.
An alcohol screening questionnaire, which was administered to you, indicated risky or hazardous levels of alcohol use, although you denied alcohol use being problematic. The report noted that you had no current drug issues and also no physical complaints. The report also noted that you had been diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD).
The author of the report said that you agreed with the Statement of Facts and that you accepted responsibility and did not try to minimise your actions. You told the author of the report that you had acted impulsively and whilst under the influence of alcohol. I note that the report indicates that you had demonstrated remorse and also empathy for the victim.
You indicated a willingness to participate in restorative justice to the author of the report. To that end these proceedings were adjourned to enable inquiries to be made as to whether that was a realistic proposal. Eventually it was determined that this was not realistic as the victim was not willing to participate in such a process. The author of the Pre-Sentence Report recommended counselling for anger management and also alcohol abuse.
I take into account the contents of a report by Dr Danielle Clout, a clinical psychologist, dated 20 November 2017. It was her opinion that the most significant factor in your background has been your exposure to extensive domestic violence, including verbal abuse and physical violence during your childhood. She noted that such exposure can prevent the development of more appropriate emotional regulation skills. It was her opinion that this, in conjunction with significant Attention Deficit Hyperactivity Disorder symptomology and related impulse control issues likely increased your propensity to violent offending.
Dr Clout said that you expressed considerable remorse and regret for your behaviour. You expressed some insight into the triggers for your aggressive behaviour and the impact of alcohol use on your impulsivity and anger regulation. She believed that you would benefit from specialist evaluation and treatment for your symptoms of ADHD. She also believed that you would likely benefit from specialised anger management treatment designed to help you gain insight into the triggers for your anger regulation difficulties and to develop more adaptive coping strategies for dealing with anger feelings. You expressed a willingness to participate in treatment of that nature.
You presented with several positive prognostic indicators for rehabilitation including full‑time and stable employment and a solid interpersonal support network. Dr Clout said that the presence of strong personal and environmental resources, in conjunction with appropriate treatment, would give you good prospects for rehabilitation.
Dr Clout stated that on a measure of general recidivism you scored in the low range against an age matched offender sample due to predominantly strong protective factors including personal and environmental resources, however, analysis of the subscales indicated high levels of impulsivity and aggressive behaviours which may increase your risk of violent offences.
I take into account and give weight to the victim impact statements that were tendered by the Crown. Those statements reveal how significantly your offence impacted on the victim and his family and how the effects of your offence continue to affect them to this day.
I also take into account the testimonials that were tendered on your behalf. They speak of you as a maturing young man who is dependable and hardworking. I note that you have maintained employment in the past and you have employment available to you now as an apprentice barber. You continue to have support of friends and family. In my opinion, you have reasonable to good prospects for rehabilitation but you need to address the symptoms of your ADHD, your anger and your alcohol abuse. I cannot say, at the present time, that you are unlikely to reoffend.
In sentencing you I must give significant weight to your youth. Rehabilitation is always an important consideration in somebody who is as young as you are. I take into account your plea of guilty with respect to this matter. It cannot be said that the plea of guilty was entered at the earliest opportunity but I do accept that it was reasonable that you did not enter a plea of guilty until such time as an appropriate charge was laid by the Crown. I accept that your plea of guilty demonstrates remorse and, indeed, I accept that you have demonstrated remorse on a number of occasions in relation to this matter. There is also a utilitarian value with respect to your plea of guilty.
As I said, I take into account the contents of the report by Dr Clout and I am satisfied that there is some reduction in your moral culpability for this offence by reason of your background of exposure to violence. I note, however, that there is nothing to link your underlying condition of ADHD to this offence. In my opinion, it is more likely that this offence is linked to your intoxication rather than to any underlying condition such as ADHD.
There is no reason to moderate deterrence, either general deterrence or specific deterrence, by reason of the material which is contained in Dr Clout's report. There are no issues which have been identified in her report that make it likely that a prison sentence will be more onerous for you than for somebody without such a condition. I do note that you have not previously served a term of imprisonment.
It has been accepted by your counsel, and I think rightly so, that this offence calls for a sentence of imprisonment. I note that you were assessed as unsuitable for an intensive corrections order. In my opinion, a sentence of full‑time imprisonment is the only option that meets all of the objectives of sentencing with respect to this matter; in particular, whilst rehabilitation is a significant sentencing consideration, general deterrence and specific deterrence are also important sentencing considerations.
Sentence
You will be convicted and you are sentenced to 13 months' imprisonment, which I have reduced from 16 months in order to reflect your plea of guilty, commencing on 22 February 2018, which is the date that you were taken into custody with respect to other matters, and expiring on 21 March 2019.
In light of your age, the fact that you have not previously served a term of imprisonment and your reasonable prospects for rehabilitation I set a non-parole period of six months commencing on 22 February 2018 and expiring on 21 August 2018.
The conviction that I have recorded, of course, means that you are in breach of the good behaviour order that was imposed [redacted] and I will simply order that no further action be taken with respect to that breach, bearing in mind that I have taken into account in sentencing you that you were subject to that order at the time.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 9 August 2018 |
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