R v Uluikadavu
[2020] ACTSC 237
•4 September 2020
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 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 attempted to de-escalate the situation.
At this point, the offender was standing in front of the complainant and across from Mr Ghiasuand. The offender tried to push Mr Ghiasuand. The complainant pulled the offender away from Mr Ghiasuand.
The offender started punching the complainant. He was pulled away by a security guard. While this was occurring, Mr Ghiasuand hit the offender twice on the head.
The security guard held onto the offender as the offender tried to follow the complainant while the complainant was being escorted through a rear door. The offender was escorted out the front door of Shorty's and was followed by his partner and an unknown male.
The complainant walked towards Garema Place in Civic, but then turned around and walked back towards the rear exit, looking for his friends.
When the complainant reached the rear exit, the offender and an unknown male walked swiftly towards him. The complainant turned and saw the offender. He extended his hand in a handshake gesture, saying words to the effect of, “Hey, look, I don't want to fight”. The offender walked up to the complainant, who then used his hand in a “stop” gesture.
The offender reached out and pushed the complainant in the chest with both hands. The complainant stepped back and raised his hands. However, the offender struck the complainant to the head, causing him to fall onto the hard tiles near the rear exit to Shorty's.
The offender turned and walked away, leaving the complainant lying on the ground.
Mr Ghiasuand exited the rear door of Shorty's to see the complainant lying on the ground and the offender leaving the area. The complainant appeared to be unconscious. He was bleeding from the mouth.
The complainant regained consciousness and, with the assistance of Mr Ghiasuand, was able to sit up and then stand.
Police were summoned. When they arrived about 10 minutes later, they observed that the complainant had a swollen jaw, and was confused and in pain.
The complainant attended the Canberra Hospital. He was diagnosed with a right-sided displaced distal clavicle fracture with associated right shoulder deformity, a right-sided mandibular fracture, a traumatic dental injury that had caused him to lose a tooth, bruising and haematoma on the right side of his jaw, and a small graze to the right temporal region.
On 18 February 2019, the complainant underwent open reductions and internal fixations of his right clavicle and right mandible. On 19 February 2019, he was discharged from hospital.
At that stage, the offender's identity was unknown; he was simply identified as a man who had been wearing a red shirt. Police released CCTV footage and sought public assistance to identify the offender (the man in the red shirt) and his partner (the blonde woman who was with the man in the red shirt).
On 21 March 2019, the offender, the offender's partner, and another male attended Woden Police Station.
Victim impact
The Court was not provided with a victim impact statement.
There was no evidence before the Court of ongoing physical disability, other than the loss of a tooth. While there was no evidence of psychological injury, I infer that the complainant experienced such injury, at least temporarily.
Objective seriousness
The offence was part of an aggressive course of conduct by the offender. It followed an aggressive exchange between the offender and the complainant's friend, Mr Ghiasuand. During the earlier part of the continuing incident, the offender's partner sought to intervene, and a security guard was also required to de-escalate the situation.
At the time of the offence, the complainant was alone. The offender ignored the complainant's words and gestures showing that he did not wish to engage in any further dispute. The offender immediately struck the complainant to his head, the most vulnerable part of the body. Such a strike is likely to cause significant injury, especially if the attack occurs when the complainant is standing on a hard surface.
These factors mean that the offence is of significant objective seriousness.
The grievous bodily harm suffered by the complainant was substantial, but certainly not at the upper end of the range so far as “grievous bodily harm” is concerned.
Subjective features
The offender is 23 years old. He was 22 years old at the time of the offence—a very young man.
He has no prior criminal record.
He was born in Fiji and is one of five children. In his youth, he experienced adversity in Fiji, living in poverty and witnessing violence during the political coup.
His family moved to New Zealand when the offender was eight. In 2014, after the offender had completed Year 12 at 17 years of age, he moved to Melbourne to play professional rugby union. Due to injury, he did not pursue a career in football.
In 2017, the offender moved to the ACT.
The offender is an apprentice plumber. He has been with his current employer for about eight months.
He maintains contact with his parents and three siblings in New Zealand and with another sibling in Fiji.
For the past two years, the offender has been in a relationship with Ms Johnstone. Currently, he resides with her and her family.
The offender has a history of binge drinking. He was involved in the heavy drinking culture that is often associated with football. However, over the last 12 months, he has consumed alcohol only very occasionally, approximately once every three months. When he does so, he consumes at a hazardous level, drinking about 12 standard drinks at times.
Because of the amount of alcohol that he had consumed on the night of the offence, the offender has a limited recall of the offence; he remembers feeling “angry and fearful” but does not remember assaulting the complainant.
The offender provided a letter to the Court and gave evidence. A presentence report was tendered.
The offender displayed remorse and insight into the offence. He accepted full responsibility for the offence, saying that he frequently thought of the complainant, his injuries, and how the offence has impacted on him. On several occasions, he has said that he would like to apologise to the complainant and his family.
The offender stated that, because of his cultural background, prior to the time of the offence, he had not sought mental health support or known how to talk about his emotions. His failure to obtain such support had led to poor decision-making, including on the night of the offence.
After the incident, the offender sought counselling at Menslink, initially each fortnight, but now monthly. He developed a close relationship with his counsellor. He can now express his feelings and discuss his problems. He has learned strategies to deal with his emotions and with stressful situations. He believes that he now has the resources to deal appropriately with future conflicts.
The author of the pre-sentence report assessed the offender as at low risk of general reoffending because of the protective factors of employment, stable accommodation, and positive support. To that, I would add that the offender now has the insight to avoid such situations in the future. I think it highly unlikely that he will commit further offences.
Mr Taylor, the offender's counsellor at Menslink, provided a report saying that he has been seeing the offender regularly since July 2019. He said that the offender has shown great commitment and a willingness to address past, present and possible future impacts of his actions, and that he has “clearly expressed his remorse for his actions”.
The offender's employer provided a reference through a senior employee, who stated that she was shocked to hear of the offence as it was out of character for the offender, whom she described as a “very quiet and productive worker” who was always respectful and polite. The employer is prepared to continue the offender's apprenticeship.
The offender's partner, Ms Johnstone, stated that he was a hardworking person who “rarely drinks”. She stated that the offender was remorseful and that, on the night of the offence, he had “started crying and begging [her] to go back so he could check on the [complainant]”. She confirmed that, since the offender had commenced counselling, he had shown growth and progress.
Ms Johnstone’s parents stated that the offender has an excellent work ethic and enjoys positive relationships with the whole family. They considered that the offence was quite out of character and described the offender as someone without an “aggressive nature”.
When the offender gave evidence, he impressed me as an intelligent, insightful and sensible person. I accept that the offence was completely out of character, and that the insight that he has gained makes it very unlikely that he will commit further offences.
Comparable cases
I have been referred to comparable cases, principally through a table provided by the offender's legal representative.
In R v Latu [2019] ACTSC 109, the offender and a co-offender had encountered the complainant lying on the ground in Theatre Lane in Civic and poured liquid over him. As the complainant was running away, the offender punched him in the face. The complainant fell backwards and hit his head on the road surface, rendering him unconscious. He suffered complex skull fracture and bleeding in and around his brain, among other things. The offender was intoxicated at the time of the offence. He was a 19-year-old man who played rugby at a very high level. He had been exposed to domestic violence and alcohol-related conflict as a child. I sentenced the offender to 20 months’ imprisonment (reduced from two years’ imprisonment), suspended after five months.
In R v Byrne [2015] ACTSC 113, the offender had punched the complainant on the head outside a convenience store in Civic, causing him to fall to the ground and hit his head. The complainant suffered significant head injuries, resulting in ongoing disabilities. At the time of the offence, the offender was 18 years old. He was sentenced to 12 months’ imprisonment, partly suspended on a two-year good behaviour order.
In R v Harmouche [2015] ACTSC 381, the offender had punched the complainant on the dance floor of a nightclub, causing the complainant to fall to the ground and hit his head. The complainant suffered severe traumatic brain injury. The offender was 25 years old at the time of sentence. He was sentenced to 15 months’ imprisonment (reduced from 20 months’ imprisonment), with six months to be served by periodic detention and the balance suspended.
In R v Keyes [2016] ACTSC 387, following an early guilty plea, Refshauge J sentenced the offender to a two-year good behaviour order for causing grievous bodily harm by a negligent act. During an altercation in a bar, the complainant had pushed the offender to the ground. The complainant had been ejected from the venue. When the offender left the bar, he saw the complainant, and the two men had an altercation. The offender pushed the complainant and hit him on the jaw, causing him to fall and suffer a significant injury to his ankle.
The current offence and the matters set out above were prosecuted under s 25 of the Crimes Act. However, many cases involving this type of conduct are the subject of prosecution under s 20 of the Crimes Act, which carries a maximum penalty of 13 years’ imprisonment. In relation to matters prosecuted under s 20, it is generally the case that the Court requires that an offender serve some period in full-time custody. That is not necessarily the case where offences are prosecuted under s 25.
The sentencing database and the comparable cases that have been provided show that many sentences imposed for offences of the type in question (i.e. offences under s 25) result in sentences of between 12 and 18 months, following a discount for a plea of guilty.
I am satisfied that the only appropriate sentence is a sentence of imprisonment. Both parties agreed that some sort of sentence of imprisonment must be imposed. The prosecution did not contend that the Court was obliged to impose a sentence of full-time imprisonment.
Other sentencing considerations
In sentencing the offender, I am required to take account of the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I have referred to the relevant features above.
Relevant sentencing purposes under s 7 of the Sentencing Act include general deterrence, recognition of harm to the complainant, and rehabilitation. In R v Deng [2017] ACTSC 338 (admittedly, a case prosecuted under s 20 of the Crimes Act), the Court said of conduct of this type:
There is clearly a significant need for general deterrence of violent conduct by young men that occurs in or near licensed drinking establishments.
Regrettably, the Court frequently sees offences of this type. General deterrence is a very important sentencing purpose.
Despite the seriousness of the offence, there are strong subjective features which mean that it is appropriate to consider alternatives to full-time imprisonment.
An assessment for an intensive corrections order was favourable and found that the offender was suitable for such an order.
Sentence
The starting point for the sentence is 16 months' imprisonment. Allowing approximately 15 per cent by way of discount under s 35 of the Sentencing Act, the offender is sentenced to 13 months' imprisonment.
I order that the sentence be served by intensive correction in the community.
The intensive correction order will include a further condition requiring the offender to undertake 100 hours of community service work within 12 months.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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