R v Todkill (No 2)

[2018] ACTSC 380

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Todkill (No 2)

Citation:

[2018] ACTSC 380

Hearing Date:

27 November 2018

Decision Date:

27 November 2018

Before:

Burns J

Decision:

See [14]-[16]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – finding of guilt after trial – statutory alternative to offence charged – offer to enter plea of guilty to statutory alternative before trial – high level of aggression – subject to conditional liberty – unenviable criminal history – consideration of subjective factors

Parties:

The Queen (Crown)

Hayden Todkill (Offender)

Representation:

Counsel

B O’Kane (Crown)

R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 146 of 2018

BURNS J:

1.        Hayden Todkill, earlier today, 27 November 2018, at the close of the evidence in your trial and after hearing submissions by the Crown prosecutor and your counsel, I found you not guilty of an offence of assault occasioning bodily harm (CC2018/6985) but guilty of an offence of common assault on Clinton Thurling on 17 February 2018, in the statutory alternative. The maximum penalty for that offence is two years’ imprisonment. 

2.        I am told that you formally made an offer just under a week ago to plead guilty to the charge of common assault and I note that the offer to plead guilty to that offence was renewed at the commencement of the trial. That offer of course came very late in the day, but I will nevertheless take that into account in determining the appropriate sentence with respect to this matter. As I indicated in my reasons for finding the offence proved, I am satisfied that you punched the victim on a number of occasions to the upper body area, some of which, at least, contacted with the face of the victim. 

3.        I accept the submission put by the prosecutor that there was a high level of aggression involved in this offence. Clearly this was a significant incident of violence, even if one were not to accept the proposition advanced by the prosecutor that the bar in the Hellenic Club, where this occurred, was a public place. It is still a place which is frequented by many members of the public, and it was an offence which was likely to be shocking to members of the public because of the high level of violence involved. I agree with the submission made by the prosecutor that this offence should be seen as towards the upper end of the mid-range of offences of common assault. 

4.        I should also add of course, that in coming to that conclusion, I take into account that there were aggravating circumstances that attended the commission of this offence. At the time you were subject to a Good Behaviour Order which was imposed in the Magistrates Court on 9 November 2017 for an offence of damaging property.  You were also on bail at that time for an offence of causing grievous bodily harm for which I sentenced you on 13 March this year, 2018. 

5.        It is perhaps convenient at this point that I discuss your previous criminal history. In 2015, you were convicted with respect to an offence of assault occasioning actual bodily harm and you were placed on a Good Behaviour Order for a period of 12 months. Subsequently on 9 November 2017 in the Magistrates Court, you were convicted of two offences of damaging property. I have before me the Statement of Facts with respect to those offences and it is clear that they again arose out of circumstances where you lost your temper, this time in the context of a domestic relationship. 

6.        On 13 March 2018, as I have said, you came before me for an offence of causing grievous bodily harm. That was also an offence which involved very significant violence. The offence itself occurred on 4 October 2016, so that it was an offence which predates the offence for which I must now sentence you. In short, you have built up quite an unenviable record for offences of violence. That of course culminated in me imposing a sentence of 13 months’ imprisonment commencing on 22 February 2018 and expiring on 21 March 2019, when I dealt with you in March 2018. I imposed a non-parole period of six months to expire on 21 August 2018. 

7.        Your criminal history does not entitle you to any lenience with respect to sentencing for the present matter and it also suggests the need for specific deterrence in sentencing. I do take into account that this offence occurred before your current term of imprisonment, so that it is not perhaps as indicative of a need for a further lengthy term of imprisonment, as would have been the case had you committed this offence after you had served the sentence of imprisonment that I imposed in March. But nevertheless it is a serious offence calling for, in my opinion, a term of imprisonment. 

8.        I have regard to the report from Dr Clout which is currently before me. That report was also tendered in the sentence proceedings in March 2018. Dr Clout expressed the opinion that the most significant factor in your background had 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 a more appropriate emotional regulation skill. 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 violence offending.

9.        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 Attention-Deficit/Hyperactivity Disorder and you would also 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. 

10.      I note that those comments by Dr Clout were made with respect to the offence of causing grievous bodily harm. You saw Dr Clout on 17 November 2017. It is clear that despite what appears to have been some degree of insight, which you were able to express to Dr Clout about the triggers for your offending behaviour and Dr Clout’s belief that you had expressed some remorse for that behaviour, you nevertheless went and committed the present offence after having spoken to Dr Clout and after those events had occurred.

11.      Dr Clout, in her report, said that you presented with several positive prognostic indicators for rehabilitation including full-time and stable employment and a solid interpersonal support network. She believed that you had good prospects for rehabilitation. She 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.

12.      Now, of course in assessing the weight to be given to Dr Clout’s opinions in that regard, I must take into account that the present offence occurred after you were seen by Dr Clout. However, again, I must balance that against the fact that you have subsequently been imprisoned and it is clear you have used the time that you have been in prison quite productively. In that regard, you have undertaken a number of programs and you have participated in counselling within the AMC which is likely to have the effect of assisting you to avoid re-offending upon your release.

13.      As I have said, in my opinion, the present offence calls for a term of imprisonment. I propose to commence that term of imprisonment from the date that you were eligible for parole, being 21 August 2018. I note that when I sentenced you in March 2018, I gave a particularly short non-parole period. I think that in the circumstances, there is some justification for increasing the relative length of the non-parole period.

Sentence

14.      You will be convicted of the offence and you will be sentenced to 12 months’ imprisonment. I have reduced that from 14 months’ imprisonment in order to recognise your plea of guilty. That will commence on 21 August 2018 and will expire on 20 August 2019.

15.      Therefore the aggregate sentence that I have imposed for the present offence and also the offence of causing grievous bodily harm for which I sentenced you in March 2018 is one of 17 months and 30 days’ imprisonment. I will reset the non-parole period to expire on 20 December 2018. 

16.      In the circumstances, I will simply order that there be no further action taken with the breach, which means that it has expired.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 25 June 2019

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Amendments

24 June 2019             Replace 16 months” with “17 months and 30 days”        Paragraph: [15]