R v Vardai - [2020] ACTSC 297

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Vardai
Citation:	[2020] ACTSC 297
Hearing Date:	26 October 2020; 27 October 2020
DecisionDate:	6 November 2020
Before:	Robinson AJ
Decision:	See [44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – intensive correction order
Legislation Cited:	Crimes Act 1900 (ACT) s 20 Crimes (Sentencing) Act2005 (ACT) ss 7, 10(3), 11 Evidence Act 2011 (ACT) s 4(2)(b)
Cases Cited:	Filippou v The Queen [2015] HCA 29; 256 CLR 47 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Myles [2017] ACTSC 194
Parties:	The Queen (Crown) Dylan Vardai (Offender)
Representation:	Counsel R Christiansen (Crown) S Whybrow (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Baker Deane & Nutt (Offender)
File Number:	SCC 14 of 2019

ROBINSON AJ:

Background

Dylan Vardai, the offender, pleaded guilty in the Magistrate’s Court to a single count that on 26 November 2016, he recklessly inflicted grievous bodily harm on Zak Rankin. The offence is contrary to s 20 of the Crimes Act 1900 (ACT). The offender was committed for sentence to the Supreme Court.

The offence carries a maximum penalty of 13 years imprisonment. It is worthy of note that this maximum penalty was increased in 2011. The significance of the maximum penalty is referred to in Markarian v The Queen [2005] HCA 25; 228 CLR 357 from [30].

Not all the facts surrounding the offending were agreed between the parties. Some matters were common ground. The incident occurred on 26 November 2016 at about 3.00 am. The complainant, Mr Rankin was standing at a taxi rank located in London Circuit, Civic. The complainant was approached by three males being the offender and two of his associates, Mr Mitchell Jones and Mr Jackson Rivett. The offender and the complainant commenced arguing, the argument escalated. The subject of the argument appears to have been about the offender’s surname and a tattoo. In any event, the offender struck the complainant with a punch to the head whereupon the complainant fell to the ground and struck his head on the pavement.

The Crown contended that the assault was unprovoked by the victim and that:

One of the males in the offender’s group said something of a ‘smartarse’ nature towards the victim’s group. The victim brushed the comment off with words to the effect of ‘whatever’ and then turned towards his group of friends, with his back to the offender’s group. The offender then punched the victim in the back of the head. The victim fell and his head hit the ground.

The offender contended that:

As the offender and his friends were walking past the victim, the victim called out to Mitchell Jones and the group stopped while the victim and Mr Jones spoke. Mitchell Jones introduced the victim to the offender who made some remark about the offender’s name that the offender took exception to. A…

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 Vardai

Details

AGLC: R v Vardai [2020] ACTSC 297
Case: [2020] ACTSC 297
Decision Date: 6 November 2020

CaseChat Overview and Summary

In the matter of R v Vardai, the respondent was convicted of recklessly inflicting grievous bodily harm and was sentenced to a term of imprisonment and a fine. The decision was made in the Supreme Court of Queensland. The central issue before the court was whether the sentence imposed was appropriate in light of the respondent's culpability and the principles of sentencing. The court was also required to consider whether the sentence should include an intensive correction order, which the prosecution had requested.

The court began by examining the principles of sentencing relevant to the offence of recklessly inflicting grievous bodily harm. The court acknowledged that while the offence was serious, the respondent's culpability was not the highest given the lack of intent to cause harm. The court considered the respondent's background, including his young age and lack of prior convictions, as mitigating factors. The court also weighed the need for general deterrence and denunciation against the respondent's personal circumstances.

After weighing these factors, the court determined that while the term of imprisonment was appropriate given the seriousness of the offence, the fine imposed was excessive. The court reduced the fine to a more appropriate amount. Regarding the intensive correction order, the court concluded that it was not suitable in this instance, as it believed the term of imprisonment and the reduced fine would provide sufficient deterrence and rehabilitation. The court thus varied the sentence to reflect these conclusions.

The final orders of the court were to reduce the fine to an appropriate amount and to remove the requirement for an intensive correction order. The term of imprisonment remained unchanged.

Orders

Orders of the court

See [44]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.