R v Waghorn
[2019] ACTSC 72
•22 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Waghorn |
Citation: | [2019] ACTSC 72 |
Hearing Date: | 31 January 2019 |
DecisionDate: | 22 March 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [58]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cranfield v The Queen [2018] ACTCA 3 |
Parties: | The Queen (Crown) Lachlan John Waghorn (Offender) |
Representation: | Counsel Mr J Walker (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 276 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 1 November 2018, Lachlan John Waghorn (the offender) pleaded guilty to an offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT).
The maximum penalty for the offence is 13 years of imprisonment.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle, which was Exhibit 1 on sentence.
In short summary, on 7 October 2018, police officers at Garema Place in Civic saw the offender throw, in the sense of push, the victim to the ground. The victim hit his head on the pavement and suffered a fracture to his jaw. This fracture required surgical intervention and, as a result, two metal plates were permanently affixed.
Objective Seriousness
In respect of the victim’s injury, counsel for the offender submitted that, in the context of the breadth of possible harms encompassed by grievous bodily harm, the victim’s injuries were at the lower end of objective seriousness. Moreover, it was submitted that the injury was less foreseeable by virtue of the fact that it resulted from the impact with the ground rather than the direct physical act of the offender. Counsel for the offender also drew the Court’s attention to the absence of any evidence of ongoing pain and suffering by the victim.
In respect of the circumstances of the offence, counsel for the offender submitted that regard should be had to the spontaneity and lack of premeditation of the conduct and that it was committed whilst the offender was under the influence of both drugs and alcohol. It was conceded the seriousness of the offence warrants a term of full-time imprisonment.
The prosecution submitted that ‘grievous bodily harm’ encompasses a spectrum of harm, and ultimately submitted that the combination of the extent of the injury and the nature of the conduct should lead to a conclusion that the offence was below the middle range of seriousness. The prosecution also rejected the submission as to the foreseeability of the injury, noting that the victim was thrown from behind, providing little opportunity for him to brace or defend himself, and with sufficient force to produce the significant jaw fracture of the victim.
The prosecution also submitted that motive of the attack should be taken into account, purportedly being one of revenge. It was submitted by counsel for the offender that, at the time of the offending conduct, the offender was of the view that the victim had supplied the offender’s partner with some amount of methamphetamine, to which the offender took exception. As stated above, the prosecution ultimately accepted that the objective seriousness was below middle range.
It is well established that the two key matters to be considered when assessing the objective seriousness of offences of this type are, first, the culpability of the offender’s conduct, and second, the relative seriousness of the grievous bodily harm sustained by the victim: Rv Hidic [2017] ACTSC 307; R v Myles [2017] ACTSC 194; R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34.
10. In this case, I find that the objective seriousness is between low and mid-range, taking into account the relevant matters.
11. It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]).
12. The identifying features of this matter that inform the objective seriousness of this offence include, in particular, the relative seriousness of the injury and the lack of premeditation. I accept, as the prosecution submitted “in terms of what the offender did, it’s certainly not a prolonged attack, there aren’t a number of blows, but here there is one powerful action by the offender to cause the victim’s injuries” (T 12.45).
Subjective Circumstances
13. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.
14. The offender is a 47 year old man who was raised by his mother and stepfather. The offender reported that his stepfather was an abusive alcoholic who passed away approximately five years ago. The offender has no contact with his father, and has only recently resumed contact with his mother. The offender reported having two other siblings.
15. The offender has four children, aged 28, 18, 8 and 6 years old, but only has contact with the eldest. He indicated to the author of the report a wish to relocate to southern New South Wales to spend more time with his eldest child and his first grandchild.
16. The author of the PSR noted that the offender “entered into his current relationship at least 18 months ago and stated he considers his partner to be his only family”.
17. The offender reported being homeless since December 2017, despite attempts to engage him with Housing ACT during a recent period of supervision.
18. The offender left school during Year 9 and has a history of employment in labouring positions but had been in receipt of unemployment benefits prior to the current remand period. The PSR indicates that his payments were frequently suspended due to his failure to comply with Centrelink’s requirements.
19. The offender reported a history of alcohol abuse, but that he had ceased such behaviour. The offender also reported a previous history of cannabis and amphetamine use. The report indicates that the offender is not motivated to cease drug use, other than in “interventions that would reduce his impending sentence”.
20. The offender has previously been diagnosed with epilepsy. Despite being advised by a specialist that he no longer has the condition, the offender reports that he continues to suffer seizures. The offender reported periods of depression and anxiety, particularly during the remand period, and reported that family had diagnosed him with schizophrenia, but that he had not sought a professional diagnosis. The offender has refused to seek medication to treat his mental health issues. No Verdins submissions were made by counsel for the offender on his behalf (R v Verdins [2007] VSCA 102; 169 A Crim R 581) (T9.18) in that regard.
21. In conclusion, the author of the PSR assessed the offender as a high risk of general reoffending. The report considered that the offender’s multiple criminogenic risks include: drug use, mental health issues, antisocial values and attitudes, lack of accommodation and lack of prosocial activities and peers. Further, the author states that the offender appears to lack significant familial ties, with the exception of his daughter, and despite his claim of wanting to reconcile with his partner, described the relationship and his partner in negative and accusatory terms. The offender presented to the author with a negative attitude towards the current offence, limiting his own culpability by invoking the victim’s fragility. Further, the offender’s interest in interventions extends only as far as the impact they potentially have on his sentence. The report concludes that unless the offender is committed to addressing his criminogenic risks, it is unlikely that his risk of reoffending will reduce.
Remorse
22. The PSR notes that the offender agreed he assaulted the victim, but claimed his actions were impulsive rather than planned. The offender attributed the blame for the offence to the victim for an alleged past wrongdoing involving the offender’s partner. The offender reported being shocked when he discovered the severity of the victim’s injury, but presented to the report’s author as callous, stating “it’s not my fault he’s so fragile, he should try drinking milk”.
23. It cannot be said that the offender is remorseful. Remorse is not a mitigating factor in this case.
Conditional Liberty
24. The offender was on a nine month good behaviour order imposed on 29 May 2018 in relation to a common assault conviction. The offender was also on three 12 month good behaviour orders imposed on 21 August 2018 in relation to a firearm storage offence and drug offences. The offender was also subject to a fully suspended sentence of six months of imprisonment for unauthorised possession of a 12-gauge shotgun, on condition of complying with a good behaviour order for 12 months.
25. The offence amounts to a breach of those good behaviour orders. Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), I am required to cancel the good behaviour order imposed for the offence for which a suspended sentence was imposed and either impose the suspended sentence or re-sentence the offender. In this case, in my view, it is appropriate to impose the suspended sentence of six months of imprisonment.
26. Pursuant to s 108 of the Sentence Administration Act, I will take no action in relation to the remaining good behaviour orders.
27. The commission of the offence while on conditional liberty is an aggravating factor on sentence: see R v Bandy [2018] ACTSC 261 (Bandy) at [27]–[30].
Criminal History
28. The offender has a criminal history dating back to 1993, including an assault, the firearm offence referred to above and drug offences. Counsel for the offender submitted that the offender’s record can be viewed as two distinct periods of offending, the most recent period being within the last several years, and the second period ending in 2003. It was submitted by counsel for the offender that the intervening period illustrates the offender is someone capable of leading a law abiding life.
Plea of Guilty
29. The offender entered a plea of guilty at the earliest opportunity in the Magistrates Court.
30. It was submitted by the prosecution that the Crown case was “overwhelmingly strong” so that the penalty should not be “significantly reduced” because of the plea: s 35(4) Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act); Williams v The Queen [2018] ACTCA 4 at [53]; Islam v The Queen [2017] ACTCA 10 at [136]-[141]. Two police officers witnessed the offence as did members of the public. The offence was captured on CCTV.
31. Accordingly, the prosecution submitted that a plea of guilty should, in this case, result in a discount to the head sentence of “somewhere lower” than 20%.
32. Counsel for the offender submitted that, in relation to the prosecution’s submission on the strength of the Crown case, while it was clear police witnessed the actus reus of the offence, it could not necessarily be concluded that the Crown case was “overwhelming” given the plea of guilty foreclosed any possible defences that may have been mounted and possible issues with establishing mens rea.
33. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act (1999) (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.
34. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47] observed that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
35. The ACT Court of Appeal in Cranfield v The Queen [2018] ACTCA 3 stated the following at [37]-[38]:
37. The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
38. The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.
36. Taking into account the relevant authorities, a discount of 20% is appropriate for the plea of guilty in this case. It was a strong case, nevertheless the plea was entered at the earliest time in the Magistrates Court.
Time in Custody
37. The offender has spent one day in custody solely referable to this offence, as he was arrested on the day of the offence. The offender was remanded in custody on 24 December 2018 following an alleged assault on his partner, and remains in custody on remand following being refused bail by the Magistrates Court.
38. It is therefore appropriate in my view that I commence this sentence on 23 December 2018.
Cases
39. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences.
40. The prosecution referred me to my judgment in Bandy where I undertook an extensive review of cases relating to recklessly inflicting grievous bodily harm at [78]-[99], including the following cases: R v Kepaoa [2017] ACTSC 414 (Kepaoa) (citing: R v Dunn [2017] ACTSC 227 [a sentence of 27 months suspended after 11 months]; R v EL [2016] ACTSC 241 [a sentence of two and a half years]; R v Hidic [2017] ACTSC 307 [a sentence of two years and seven months, to be served by way of Intensive Corrections Order (ICO) and community service]; R v Sharma [2016] ACTSC 180 [a sentence of 27 months, suspended after nine]; and R v Myles [2017] ACTSC 194 [a sentence of 22 months, to be served by ICO and community service]); R v Sikoulabot [2018] ACTSC 217 (citing: R v Deng [2017] ACTSC 338 [a sentence of 12 months, served by ICO]; Kepaoa [a sentence of 22 months served by ICO and community service]; R v McNeill [2018] ACTSC 125 [a sentence of 30 months, served by ICO]; R v Chapman [2018] ACTSC 57 [a sentence of 15 months, suspended with a good behaviour order and community service]); R v LT [2017] ACTSC 343 [a sentence of two years and three months, suspended with a good behaviour order]; R v Burgess [2017] ACTSC 249 [a sentence of three years and one month]; R v Pallier [2017] ACTSC 112 [a sentence of 27 months]; R v McBride [2017] ACTSC 102 [a sentence of three years]; R v Carmody (No 3) [2017] ACTSC 60 [a sentence of two years and five months, suspended for three years]; R v Rappel [2017] ACTSC 38 [a sentence of two years and 11 months]; R v Beniamini (No 2) [2017] ACTSC 32 [a sentence of two years]; R v Smith [2016] ACTSC 330 [a sentence of two years, suspended with a good behaviour order]; R v Seretin [2016] ACTSC 45 [a sentence of four years]; R v Williams [2015] ACTSC 406 [a sentence of three years]; R v Neish (Unreported, Refshauge J, 24 May 2013) [a sentence of two years, to be served by periodic detention for three months, and suspended thereafter]; R v Pumpa [2014] ACTSC 223 [a sentence of two years and eight months, served as 12 months of periodic detention and suspended thereafter]; R v Laipato (unreported Nield AJ, 16 September 2010) [a sentence of three years]; R v RC (Unreported, Burns J, 19 October 2012) [a sentence of six years]; R v Cranfield [2017] ACTSC 171 [a sentence of three years, seven months and five days]; R v Bartlett [2016] ACTSC 390 [a sentence of three years and six months served by way of ICO and community service] and R v Rehinberger [2016] ACTSC 14 [a sentence of 18 months, suspended with a good behaviour order].
41. These cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
Statutory and Other Considerations
42. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
43. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation and recognition of harm to the victim are important sentencing considerations.
44. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.
45. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
46. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
47. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]-[30].
48. In respect of the submission as to motive, Spigelman CJ in R v Swan [2006] NSWCCA 47 observed that (at [61]):
It is important therefore to understand the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may so some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe penalty in order to address issues of deterrence.
49. An offence committed for reasons of revenge has been considered to be aggravating: R v Wrigley [2015] ACTSC 114 at [33].
50. In Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223, Howie J made the following statement regarding considerations of motive on sentencing (at [102]):
An offence is not mitigated by the fact that no comprehensible motive can be shown. Motive is like any other aspect of the circumstances surrounding the commission of an offence. The Crown is only required to prove the elements of the crime charged. If the Crown wishes to rely upon motive as an aggravating feature, the Crown must prove it beyond reasonable doubt. If the accused contends that the motive is a mitigating factor, the accused is required to prove it on the balance of probabilities. If the court cannot determine what motivated the offender, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing.
51. I take the motive into account as an explanation of the offence which provides context to the offending rather than as an aggravating or mitigating factor in the circumstances of this case.
52. As I am sentencing for this offence along with imposing the suspended sentence for the previous firearm matter, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).
53. The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
54. It is well to recall what was stated in Mill v The Queen (1988) 166 CLR 59 at 63:
The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.
Sentence
55. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. Both the short and long-term consequences of being the victim of this offence must be acknowledged.
56. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and the subjective matters relating to the offender.
57. The appropriate sentence for the offence of recklessly inflicting grievous bodily harm is 2 years and 9 months reduced to 2 years and 2 months on account of the discount of 20% for the plea of guilty.
Order
58. I make the following orders:
(a)I record a conviction in relation to the offence.
(b)I cancel the good behaviour order set on 21 August 2018 by Special Magistrate Cush for CC2018/3666.
(c)I impose the suspended sentence of six months of imprisonment in relation to CC2018/3666, to be served from 23 December 2018 to 22 June 2019.
(d)I take no action on the breach of good behaviour order relating to CC2018/3667.
(e)I take no action on the breach of good behaviour order relating to CC2018/3665.
(f)I take no action on the breach of good behaviour order relating to CC2018/3664.
(g)I take no action on the breach of good behaviour order relating to CC2018/6315.
(h)In respect of the offence of recklessly inflicting grievous bodily harm (CC18/13069), the offender is sentenced to a term of 2 years and 2 months of imprisonment, commencing on 23 March 2019 and ending on 22 May 2021.
(i)I set a non-parole period of 18 months, commencing 23 December 2018 and ending on 23 June 2020.
| I certify that the preceding [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 22 March 2019 |
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