R v Uluikadavu - [2020] ACTSC 237

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Uluikadavu
Citation:	[2020] ACTSC 237
Hearing Dates:	9 July and 4 September 2020
DecisionDate:	4 September 2020
Before:	Murrell CJ
Decision:	Sentenced to 13 months’ imprisonment to be served by intensive correction in the community with a community service work condition.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – “One punch” offence
Legislation Cited:	Crimes Act 1900 (ACT) ss 20, 25 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35
Cases Cited:	R v Byrne [2015] ACTSC 113 R v Deng [2017] ACTSC 338 R v Harmouche [2015] ACTSC 381 R v Keyes [2016] ACTSC 387 R v Latu [2019] ACTSC 109
Parties:	The Queen (Crown) Elimi Uluikadavu (Offender)
Representation:	Counsel M Dyason (Crown) M Kukulies-Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Number:	SCC 294 of 2019

MURRELL CJ:

On 20 May 2020, the offender pleaded guilty to the offence that, on 17 February 2019, he caused grievous bodily harm by an unlawful act, contrary to s 25 of the Crimes Act 1900 (ACT) (Crimes Act).

The maximum penalty for this offence is five years' imprisonment.

The plea was entered after the second of two closely spaced criminal conferences. Unfortunately, because of the way in which matters were listed, both criminal case conferences occurred very shortly before the scheduled trial date of 25 May 2020.

Given these listing circumstances, the offender is entitled to a discount of 15 per cent to reflect the utilitarian value of the plea, noting that the Crown case was quite strong.

The offender has spent no time in custody in relation to this offence.

Facts

At 1 AM on 17 February 2019, the complainant and two friends (one of whom was Mr Ghiasuand) went to Shorty's Bar in Civic. Mr Ghiasuand ordered two drinks at the bar.

The offender approached Mr Ghiasuand and suggested that they “go outside”. Neither the complainant nor Mr Ghiasuand knew the offender.

The offender was wearing a red shirt. He was with his partner, Ms Johnstone.

The offender placed an arm around Mr Ghiasuand's back and alleged that Mr Ghiasuand had touched his partner, a proposition that Mr Ghiasuand refuted.

The offender moved towards Mr Ghiasuand's face and, for about 40 seconds, the offender argued with him. The complainant was standing behind Mr Ghiasuand. At one point, the offender placed his hand on the back of Mr Ghiasuand's neck, and the complainant removed it.

Approximately 10 seconds later, the offender's partner placed herself between the offender and Mr Ghiasuand, and pushed the offender away.

CCTV footage shows that the offender was behaving aggressively throughout the incident. He was dishevelled and was persistently moving towards and speaking to Mr Ghiasuand.

After the first part of the incident, the offender approached Mr Ghiasuand for a second time.

The complainant gestured towards the security guards, and a security guard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Uluikadavu

Details

AGLC: R v Uluikadavu [2020] ACTSC 237
Case: [2020] ACTSC 237
Decision Date: 4 September 2020

CaseChat Overview and Summary

The matter of R v Uluikadavu was heard in the Supreme Court of Victoria. The appellant was convicted of recklessly inflicting grievous bodily harm by striking the victim in a single-punch attack. The case presented issues concerning the severity of the sentence, particularly given the nature of the "one punch" offence. The court was tasked with determining an appropriate penalty that reflected the seriousness of the crime while also considering the appellant’s background and personal circumstances.

The court examined several factors, including the brutality of the attack, the vulnerability of the victim, and the appellant's criminal history. It was also noted that the appellant had shown remorse and had no previous convictions. The prosecution argued for a sentence that would serve as a strong deterrent, while the defence sought a more lenient approach, considering the appellant's otherwise clean record and the possibility of rehabilitation. The court had to balance these competing considerations to arrive at a sentence that was both just and appropriate.

In delivering its judgment, the court acknowledged the severity of the offence but also recognised the appellant's lack of prior criminal activity and his display of remorse. The court ultimately determined that a sentence of 13 months' imprisonment, to be served through intensive correction in the community with a condition of community service work, was appropriate. This decision reflected the need for punishment while also providing an opportunity for the appellant to contribute to the community and potentially rehabilitate.

Orders

Orders of the court

Sentenced to 13 months’ imprisonment to be served by intensive correction in the community with a community service work condition.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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