R v Vardai
[2020] ACTSC 297
•6 November 2020
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 |
Cases Cited: | Filippou v The Queen [2015] HCA 29; 256 CLR 47 |
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 short verbal argument ensued, and the victim grabbed the offender by the shirt. The offender punched the victim once hard to the face.
Thereafter, the offender and his associates ran from the scene. Police arrived shortly thereafter and found the complainant lying on the pavement still unconscious. The complainant was transported to the Canberra Hospital where he underwent emergency surgery to his face and jaw.
I made a direction under s4(2)(b) of the Evidence Act2011 (ACT) that the law of evidence would apply to the resolution of the above factual question.
On that question I heard evidence from the complainant, Zak Rankin, as well as Sam Burgess, Mitchell Jones, Senior Constable Brennan and the offender himself. Medical evidence and busines records from the Canberra Hospital were also tendered. The law to be applied is taken from the High Court’s decision in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64]. Set out below are short extracts of the evidence given. The extracts do not present a full picture of the evidence given.
Zac Rankin
The complainant gave evidence that the last memory he had of that night was putting his ex-girlfriend in a taxi on London Circuit. He had no further recollection of the night. In cross examination he agreed that he had been drinking a lot that night and that he had taken some ecstasy and speed.
Sam Burgess
Mr Burgess was having a cigarette outside a nightclub in the proximity of a taxi rank on London Circuit. He saw two guys coming from the direction of Mooseheads wearing track suit pants from the best of his memory. He continued:
who was the first to speak? Can you tell us that?--- No, I can’t
do you know what words were spoken between the groups?--- No.
Do you know what tone was used?-- I think he was-he said something smart, I think, the guy that got hit tried to brush it off turned back to his friends and then got hit.
…
Where was it he got hit?--- I think he got hit on the back side of the head.
…
When he went down, how did he fall to the ground?--- He kind of just went over. I remember his head hitting the pavement pretty hard and hearing the sound of that.
Do you know what part of his head it was that hit the ground?--- No it was about 5 m back but I definitely heard it. I remember that.
In cross examination Mr Burgess was reminded that the events took place nearly four years ago and that he had provided a statement to the police dated 15 October 2020. Mr Burgess had arrived in the city at about 8:30 pm that evening with a couple of friends and the events occurred at 3 am. Notwithstanding this passage of some six hours, Mr Burgess said that he probably had only had three or four drinks during that period. He did not know any of the people involved and was not paying a great deal of attention until the event happened. It was suggested to him that the people were not wearing track suit pants but rather wearing smart casual pants. He said he could not be sure. He agreed that there was an exchange between a man who was hit and the man who did the hitting which became aggressive in nature and the parties were getting louder and louder. It was suggested to him by the cross examiner:
Okay and is the case that it might have been what the argument was about but you weren’t paying enough attention to know exactly what they were arguing about, just that they were arguing?--- Yes, I’m not sure
Okay and I want to suggest he was hit once to the face, not to the back of the head, and fell down?--- I can’t recall
Mitchell Jones
Mr Jones knew the offender from high school and on the day in question went out with the offender and a person known to him from “online” as Jack. The offender, Mr Jones and Jack were going to catch a taxi. They had been to Mooseheads. They were dressed so that they could get into nightclubs. Mr Jones knew Zac Rankin. An argument developed between the offender and the complainant concerning the offender’s last name. Mr Jones said that the complainant kept pushing and getting closer to the offender and into his personal space.
Mr Jones then said that the complainant:
[J]ust sort of come in a bit close and sort of like to grab him. I don’t know. It was a little weird because they were-they were both started arguing like, you know,’ what are you going to do about it’, blah, blah and then he went to grab Dylan. Dylan-I don’t know-it was just really fast. He obviously, you know, defended himself, try to hit back and then yes.
Who do you say try to defend themselves? -- Dylan did, yes.
How did he do that?--- Just struck him once and that was it.
Mr Jones said that the blow was on the side of the face, on the jaw line under the left ear.
Senior Constable Drennan
This officer was called to the scene after the assault and was in charge of the investigation which ensued. By that time the offender had fled the scene. He gave evidence of the chronology of the investigation and his attempts to track down the offender after he received a tip off as to the identity of the offender.
Offender
The offender gave evidence that the argument started when the complainant enquired about the offender’s tattoo which happens to be his last name. He described the complainant as being, at that time, very drunk and stumbling everywhere. The argument escalated and got to a point of name calling.
The offender continued:
And then he’s just grabbed me by the shirt and lifted me up and then as he’s lifted me up I’ve just punched him with my left arm
In cross examination, the offender said that “He just fell back, just onto the back, on his back.”
Resolution of Disputed Facts
The plea of guilty is an admission by the offender of all of the elements of the offence. Relevantly, for present purposes, the offender delivered the blow to the complainant which caused the grievous bodily harm.
The Crown contention relied heavily upon the evidence of Sam Burgess. He did his best to recount the events of the night. He was independent of the parties involved in the dispute and was in reasonably close proximity to the place where the assault occurred. However, his task was to recall events almost four years ago. He had been first asked to give a statement to police in mid October this year. He was understandably uncertain about some details. Some other details he provided, such as the offender’s associates wearing track suit pants and attending a night club, seemed unlikely.
Mitchell Jones was less persuasive in his account of the events. I also need to take account of the circumstances that Mr Jones was a friend of the offender and also seems to have consumed a fair amount of alcohol that evening. However, I do not dismiss his account entirely.
Senior Constable Brennan did not add directly to the narrative. He explained how the police investigation progressed slowly with what appears to be the offender resisting making contact with police. This evidence was consistent with his flight from the scene of the assault on the night. I have concluded that the offender’s conduct on both of these issues exhibited a consciousness of guilt. However, I could not distinguish between this consciousness of guilt pointing to one of the alternatives in contention between the parties rather than the other. It was neutral in that respect.
The offender’s evidence was not overly persuasive. For example, I was unable to accept his evidence that his mother, who aided his flight on the night by driving to pick him up after the assault on that night, would not have informed him that the police had called at her house looking to find him. The offender claimed that he did not have knowledge that the police were looking for him until the execution of a search warrant at his house in November 2018.
The medical evidence tendered is consistent with a punch to the side of the face and the complainant falling backwards to the ground and suffering injury from that fall to his occipital region of his head.
Overall, I find that the Crown has failed to prove beyond reasonable doubt that the offender delivered the blow when the complainant had turned away from the offender and was no longer engaged in the argument with the offender.
It is not possible to determine to any great level of confidence, the circumstances of the assault. The effect of drugs and alcohol combined with the passage of time also influence that degree of confidence.
I am unable to determine precisely how the assault occurred and my finding is accordingly at a low level of generality. I find that the assault occurred during the course of a verbal argument between two people under the influence of drugs and alcohol. I find that the offender threw one punch which knocked the complainant to the ground. The complainant did not throw any punches himself.
Injuries to Complainant
The injuries to the complainant were set out in the statement of facts as follows:
19 Dr Virginia French outlines the injuries sustained by Mr Rankin and the treatment he received in a report dated 27 July 2020. This report includes that Mr Rankin presented at the Canberra Hospital on 26 November 2016 with injuries of:
- A displaced fracture of the right angle of mandible (jaw), with involvement of the 48th dental alveolus (right lower wisdom tooth);
- Fracture of left angle of mandible (jaw) with involvement of the 38th dental alveolus (left lower wisdom tooth);
- Occipital scalp haematoma; and
- Concussion/ Middle traumatic brain injury.
20 The treatment included -
- Scarring as a result of the surgery required to repair his complex fractures; Permanent loss of right lower wisdom tooth;
- A possibility of further dental injuries or tooth loss;
- A possibility of ongoing pain and discomfort;
- A possibility of further reparative and/ or cosmetic surgery at a later date; and A possibility of psychological sequelae related to the experience of a traumatic event.
21 Dr French provides that the [permanent] and long-lasting sequelae sustained by Mr Rankin from his injury includes –
- Scarring as a result of the surgery required to repair his complex fractures; Permanent loss of right lower wisdom tooth;
- A possibility of further dental injuries or tooth loss;
- A possibility of ongoing pain and discomfort;
- A possibility of further reparative and/ or cosmetic surgery at a later date; and A possibility of psychological sequelae related to the experience of a traumatic event.
Objective Circumstances
The main components of the offence to which the offender has pleaded guilty consists of the recklessness of the assault and the nature of the grievous bodily harm suffered. The authorities are collected by Murrell CJ in R v Myles [2017] ACTSC 194 at [12]. I have set out above my finding as to facts relating to the assault. It occurred in the context of an initial verbal exchange which escalated into physical confrontation between parties who were both under the influence of drugs and alcohol. The punch that was thrown was thrown with great force, sufficient to immediately knock a person to the ground. It was a punch the force of which fractured the left and right lower jaw bone of the victim, required surgical repair and has permanent and long lasting consequences. I have detailed these injuries more fully in the preceding paragraph. There was, however, no planning or premeditation for the act and it could be seen as a spontaneous response arising out of a loss of self control. There was no assertion of self defence on behalf of the offender at the hearing. No weapon was involved nor was the offence committed in company.
Plea of Guilty
The plea of guilty was entered at an early opportunity. As stated above, it needs to be remembered that a plea of guilty is an admission of all of the elements of the offence. It is not an admission of every fact which might be relevant to an element of the offence. It is not said that the statement of facts tendered to the Magistrate’s Court in any way bound the offender when appearing for sentence in the Supreme Court. By negotiation between the parties, that could be so in some cases, but it was not so in this case.
It is a common feature of sentencing hearings that there will be a contest regarding disputed facts. Here there was such a contest. The contest was resolved in favour of the offender. In my view, that does not, in any way, detract from the value of the plea of guilty to the offence. Remorse and contrition need to be aligned with the actual facts relating to the offending as does the utility of any plea need to be aligned to those same facts. Had the offender been unsuccessful in relation to that contest of fact then it would be necessary to reassess the value of that plea. Matters of contrition, remorse and utilitarian value would need to be considered.
Good Character
The offender has no criminal record. He also has not come under notice from the police in the ensuing four years since the assault took place. There is evidence of his good character and of his diligent work commitment for many years and assistance to others. It can accurately be said that the assault was out of character and a one-off incident.
Subjective Circumstances
The offender is 27 years of age. He completed year 12 and then completed a Certificate III in Cooking at the Canberra Institute of Technology and has been employed as a chef since 2014. He is in full-time employment and does not have any alcohol or drug use problems.
The offender is in a relationship of two years standing and is expecting a child of that union in mid November this year.
The opinion of the authors of the ACT Corrective Services Pre-Sentence Report is that the offender is-
a 27-year-old man who reported an unremarkable upbringing. He reported to have a supportive family, the rewards of tertiary education, and ongoing employment.
His offending behaviour appears to be a reflection of his poor self-control at the time of the offence, indicating inadequate anger management and impulse control. It is considered that the offender may benefit from undertaking anger management counselling.
[The offender] has been assessed as a low risk of general reoffending.
The offender has been assessed as suitable for an Intensive Correction Order.
As I have set out above, the offender fled from the scene of the assault and thereafter, out of self-interest, kept out of the way of police investigations. At the hearing before me, the offender accepted his responsibility for the offending and recognised his poor decision-making on the night and the seriousness of his behaviour.
In the case of this offender, rehabilitation is not a high consideration although anger and impulse control issues need to be addressed. He does not appear to be at a high risk of reoffending.
Imprisonment
I have concluded that no sentence other than a sentence of imprisonment is warranted in the circumstances of this offending.
I was referred to a number of comparable cases. I consider that the starting point is a sentence of 18 months’ imprisonment in the circumstances of this case. I reduce that to approximately 13.5 months on account of the plea of guilty.
I do not consider that a suspended sentence of imprisonment would be appropriate as reflecting the gravity of the offending. I have given consideration to my discretion to depart from the position set out in s10(3) of the Crimes (Sentencing) Act2005 (ACT) that a sentence of imprisonment must be served by full-time detention at a correctional centre.
I have exercised my discretion informed by the purposes for which a court may impose a sentence set out in s7 of the above Crimes (Sentencing) Act 2005.
I have concluded that the purposes sought to be achieved can be accommodated by imposing an order that the sentence of imprisonment is to be served by intensive correction in the community. Such an order will, in the circumstances of this case, provide that the offender is adequately punished for the offence. It will also accommodate the other conflicting aims to the extent possible.
Order
I make the following orders:
(a)For the offence of recklessly inflicting grievous bodily harm, I sentence the offender to 13 months’ and 15 days imprisonment commencing on 6 November 2020 and ending on 20 December 2021.
(b)Pursuant to s11 of the Crimes (Sentencing) Act2005, the sentence is to be served in the community by way of Intensive Correction Order. I impose the core conditions and the following additional condition:
(i)within 12 months from 6 November 2020, the offender is to undertake 100 hours of community service work.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 6 November 2020 |
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