R v Walters (No 2)
[2018] ACTSC 139
•8 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walters (No 2) |
Citation: | [2018] ACTSC 139 |
Hearing Dates: | 30 January, 8 May 2018 |
DecisionDate: | 8 May 2018 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – breach of good behaviour order – not suitable for intensive correction order – good behaviour order cancelled – re-sentenced – sentenced to imprisonment for all charges |
Legislation Cited: | Crimes Act 1900 (ACT), s 20 |
Cases Cited: | R v Walters [2014] ACTSC 225 |
Parties: | The Queen (Crown) Brian Walters (Offender) |
Representation: | Counsel D Sahn Khan (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecution (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 201 of 2012 SCC 62 of 2013 SCC 57 of 2016 |
MOSSOP J:
Introduction
Brian Gregory Walters has pleaded guilty to the offence of recklessly inflicting grievous bodily harm. On New Year’s Eve 2015, the offender repeatedly punched the victim in the face causing serious injuries. A conviction for this offence puts the offender in breach of a three year good behaviour order entered into on 26 August 2014.
The maximum penalty for the offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years imprisonment.
Facts
The facts were agreed and set out in a Statement of Facts dated 3 August 2017. On 31 December 2015, the victim and his partner attended the offender’s flat. The victim’s brother, who knew the offender, also attended. They attended to celebrate New Year’s Eve. The offender annoyed the victim during the evening, calling him names and punching his arm. This escalated to an argument in the lounge room where the victim called the offender a “big fat fucking paedophile”. Having regard to the personal history of the offender, the insult directed towards him was a significant provocation. The offender told the victim to get out of his flat. The victim made his way to the front door. The offender put him in a headlock. The victim broke free and told the offender to “fuck off”. The victim exited the unit and ran down two flights of stairs. The offender followed him. The victim ran to the opposite side of the driveway and remonstrated with the offender, waving his arms around and saying “come on, come on”. The victim ran towards Hindmarsh Drive across a nature strip. The offender caught up to the victim on the footpath adjacent to Hindmarsh Drive. He grabbed his shoulder and threw him to the ground. He straddled him with his knees either side of his body, held his throat with his left hand and with his right delivered about 12 forceful punches to the victim’s face. The offender was screaming at the victim while he punched him. This was observed by the victim’s brother and the victim’s partner. It was also observed by other residents of the housing complex. Police arrived and the victim identified the offender. Police spoke to the offender and he told them a false story about the incident.
The victim suffered a broken cheekbone, a broken nose, a superficial laceration below the left eyebrow and swelling to the left orbit and eyelid. There is no evidence of ongoing complications as a result of these injuries, although there is an increased risk of dementia and Parkinson’s disease as a result of the blows to the head.
At the time of the offence, the offender was subject to a three year good behaviour order, entered into on 26 August 2014, in relation to offences of assault occasioning actual bodily harm, forcible confinement and using an offensive weapon. For those offences, Penfold J had imposed a head sentence of four years and six months, suspended after 20 months. The good behaviour order, which was a condition of the suspension of the sentences, required the performance of 200 hours of community service within 18 months. The offender completed this community service.
Objective seriousness
While any offence involving grievous bodily harm is necessarily serious, this offence is at the lower end of the range. That is because the damage included a broken nose and broken cheekbone but no other nerve or neurological damage. It was not premeditated and involved considerable verbal provocation by the victim.
Subjective circumstances
The pre-sentence report, dated 21 April 2017, indicates that the offender is currently 35 years old. He was born in Canberra. He was raised solely by his mother. He has a good relationship with her, although it has previously been terrible as a result of his drug use. The offender required multiple surgeries for a congenital condition of club feet, which affected him physically and emotionally. He suffered psychological trauma as a child when a friend committed suicide when the offender was eight years old and also suffered sexual abuse from the age of 12 for a number of years. The abuser introduced him to alcohol and illicit substances.
He resides in public housing. He had been staying at his mother’s residence in Queanbeyan after moving out of Strathgordon Court, where the current offence took place, as a result of fears for his safety. He has now obtained public housing elsewhere.
He completed Year 10 at school. He did a chef apprenticeship for six months. He has obtained some work-related qualifications while remanded at the Alexander Maconochie Centre. He has had little employment history. He receives the Newstart allowance.
10. He reported to the author of the pre-sentence report that he ceased relationships with many of his former friends who are involved in criminal activities.
11. He reported commencing drinking alcohol at the age of 12 years and by the age of 15 years he was drinking a case of beer or a bottle of spirits a day. That increased so that by the age of 21 he was drinking both a case of beer and a bottle of spirits. He would, at that stage, require hospital treatment for alcohol poisoning at least twice per month. As part of the pre-sentence report process, he completed an assessment which indicated that his self-reported alcohol use over the preceding 12 months was such that he was rated as a low risk, indicative of him having addressed his historical alcohol abuse.
12. He commenced smoking cannabis at 11 years of age and that became a daily habit by the age of 12. His use increased up to 7g a day up until 2012. He had occasionally used amphetamines between the ages of 16 and 30.
13. At the age of 16, he attempted the Arcadia House Residential Rehabilitation program without success. In 2013, he completed the 12-18 month residential program at Canberra Recovery Services, a program run by the Salvation Army. He acknowledged that when affected by alcohol or illicit substances he is highly erratic, aggressive and unpredictable. His only relapse into drug use was between September 2016 and February 2017, during which he used cannabis. Following prescription of fluoxetine by his psychiatrist, he reported that he ceased his cannabis use.
14. He is reported as starting his own car detailing business.
15. He suffers knee and back problems as a result of suffering from club feet. He has a history of depression and anxiety disorders, including post-traumatic stress disorder (PTSD) following the sexual abuse as a child. He recognises the need for ongoing counselling to maintain his mental health. A further contributor to his PTSD was being a witness to a motor vehicle accident where he assisted in extracting a passenger and driver from a burning vehicle but the driver did not survive.
16. He demonstrated remorse for the injuries suffered by the victim but partially minimised his part in them by rationalising the reasons for his actions. He said that he was not feeling affected by alcohol at the time of the offence. The pre-sentence report includes the statement “[h]e has firmly stated that he was only trying to defend himself against physical attack from the victim of the offence”. It is not clear whether this reflected his state of mind at the time of the pre-sentence report or whether it reflects a previous state of mind.
17. The author of the pre-sentence report notes the success that the offender has had in addressing his substance abuse and mental health issues. He is assessed as being in a medium risk of reoffending, the author identifying his risk factors as his mental health and his need to maintain engagement with alcohol and other drug support services, to attend anger specific interventions and to continue to avoid antisocial peer groups. He is assessed as suitable for a community service condition.
18. A medical report from a consultant psychiatrist, Assoc Prof Carolyn Quadrio, was tendered. This is a report prepared for the purposes of civil proceedings arising out of the offender’s attempts to rescue people involved in the car accident in 2016. The report describes significant ongoing symptoms from those events. It indicates that, as a result of the accident, he suffers from both PTSD and depression.
19. A number of other documents were tendered corroborating the evidence relating to his successful completion of the Canberra Recovery Services program, the traumatic effects of assisting after the road accident and the need to move from his public housing accommodation at Strathgordon Court where he was being threatened.
Criminal history
20. The offences giving rise to the good behaviour order were committed in April and July 2012. In addition, the offender has convictions for possessing a prohibited substance and possessing a knife without reasonable excuse committed in July 2012, for which he was given good behaviour orders. He also has convictions for possessing a small amount of cannabis committed in 2011 and a drink-driving and unlicensed driving offence from 2005.
Plea of guilty
21. On 1 April 2016, the offender was committed to stand trial in the Supreme Court on a charge of intentionally inflicting grievous bodily harm. The trial was listed to commence on 14 March 2017. On that date, the offender pleaded guilty to the charge of recklessly inflicting grievous bodily harm following negotiations between the parties.
Previous offence
22. The previous offending conduct is described in the decision of Penfold J in R v Walters [2014] ACTSC 225. The charges were unlawful confinement, assault occasioning actual bodily harm and intentionally and unlawfully using an offensive weapon likely to cause grievous bodily harm. The charges arose from two separate incidents.
23. The first in April 2012, involved the offender, who had been drinking alcohol and smoking cannabis, hitting the victim who was riding a bicycle as he drove past in his car. He struck him with a speaker. This is the charge of using an offensive weapon in a manner likely to cause grievous bodily harm. He then drove dangerously, spinning his car around and headed back towards the victim, he then accelerated towards the victim and struck him with the bumper bar, knocking him to the ground. He did not have a driver licence at this time. The driving offences were scheduled in relation to the sentence for the offensive weapon charge.
24. The other offences were committed in July 2012. They are described in her Honour’s reasons as follows:
2. The other offences were committed in July 2012. The complainant in relation to these offences, not the same person threatened by Mr Walters’ driving in April, owed a drug debt to Mr Walters’ co-accused, for whom he had been dealing drugs. Late one afternoon, Mr Walters phoned the complainant, who was staying with a friend not far from Mr Walters’ home in Hackett, and asked him for help with a tattoo stencil. Mr Walters picked up the complainant in his mother’s car but took him to the co‑accused’s house in Watson. After a discussion between Mr Walters and the co‑accused, in the complainant’s presence, they agreed to tie the complainant up and leave him in the bush somewhere. The co‑accused gave the complainant an extra jumper and then Mr Walters drove them to a car park at the base of Mount Majura. The two offenders walked the complainant about one-third of the way up the mountain, and then told him to get into a ditch. In the ditch the complainant was hog-tied with phone-charger cables and his mouth was taped up. Mr Walters then placed a log over the complainant to hide him from view. Before Mr Walters and the co-accused left, the co-accused un-taped the complainant’s mouth. The complainant managed to free himself after 20 minutes of struggling. He ran back down the mountain and returned to where he was staying. Mr Walters arrived at the unit shortly afterwards and said to the complainant “Oh, you’ve made it. You’re free.” He then had a beer with the complainant and his friends.
3. Three days later. Mr Walters and the co‑accused forced their way into the unit where the complainant was staying. The co-accused began to slap, punch and elbow the complainant in the face and head. Mr Walters took over the assault on the complainant after the co-accused turned his attention to another occupant of the unit. After the co-accused had pierced the complainant’s earlobe with a heated piece of metal, he and Mr Walters began punching and elbowing the complainant, mainly hitting him in the head. Mr Walters hit the complainant so hard that he injured his own hand, and said he would now beat the complainant harder. Mr Walters then obtained a spear gun, and guarded the complainant for some hours through the night after the co-accused left. At one point he made an icepack for the complainant and the complainant took it and went to bed. The next morning, the complainant left the unit, telling Mr Walters he had a Centrelink appointment.
25. The victim suffered at least 27 individual, identifiable injuries which indicated multiple applications of force. They included a number of injuries to his head which had the potential to be very serious and potentially life-threatening. While the offender was not the driving force behind the July 2012 offences, he was a willing and enthusiastic participant.
26. Penfold J deferred sentencing so as to permit him to attend the Canberra Recovery Service drug rehabilitation centre. He made what her Honour described as “remarkable progress” in rehabilitating himself. Her Honour sentenced him for the unlawful confinement to three years imprisonment, for the assault occasioning actual bodily harm to 22 months imprisonment and for using an offensive weapon likely to cause grievous bodily harm to 22 months imprisonment. The first two sentences were to run concurrently and both were to be concurrent as to four months with the third sentence. This gave a total effective sentence of four and half years. The sentences were backdated 20 months to take into account the time in custody and time in residential rehabilitation and suspended immediately, leaving 34 months that were able to be served by compliance with a good behaviour order for three years. Her Honour warned the offender that if he committed another offence of violence “you can be fairly sure that you will be serving some more of this sentence in full-time custody”. She also congratulated him on his “remarkable turnaround”.
Intensive correction assessment
27. An intensive correction assessment report repeated much of the material in the pre‑sentence report. Drug testing indicated ongoing use of cannabis. He was assessed as not suitable for an intensive correction order because of his inability to remain abstinent from cannabis during the assessment period and his lack of demonstrated willingness to address the issue.
Time in custody
28. He spent one day in custody in relation to the 2015 offence. I have taken this into account in determining sentence.
Consideration
29. The further offending took place 15 months into a three year good behaviour order, compliance with which was a condition of suspension of 34 months imprisonment, which was the outstanding balance of the four and half year sentence. In my view, it is necessary to cancel the good behaviour order and re-sentence the offender in relation to those offences. It is not appropriate to simply impose the balance of the sentence having regard to the period following the suspension of the sentence during which he did not offend and that he completed the 200 hours community service work required to be performed.
30. Counsel for the offender submitted that I should order that the sentences be served by way of an intensive correction order. He submitted that I should not accept the recommendation of the intensive correction assessment which indicated that he was not suitable for an intensive correction order because of his inability to remain abstinent from cannabis during the intensive correction assessment. While there certainly will be occasions when it is appropriate to depart from a recommendation in relation to an intensive correction order, I do not consider that there are sufficient indications of his willingness to modify his drug use so as to warrant an intensive correction order even though it is not recommended. Further, to deal with the matters in that way would give insufficient weight to the fact that the 2015 offence was a violent act causing grave injury and with potential to cause even more serious injury, committed at a time when he was on conditional liberty.
31. Taking these matters into account, it is appropriate that he be sentenced to a period of full‑time imprisonment. I will increase the period by which the overall sentence is backdated from 20 months to 40 months to take into account the period during which he was offending free and the fact that he has completed the 200 hours community service. I will impose the same penalty as did her Honour but backdated by 40 months, leaving a balance of 14 months to serve. Her Honour suspended that sentence but, in my view, in the light of the sentence for the 2015 offence, it is more appropriate to deal with the matter by way of a non-parole period.
32. In relation to the 2015 offence, this is at the low end of the range of objective seriousness for this offence. The starting point is a sentence of imprisonment of 12 months, which I reduced to 11 months on account of the plea of guilty.
33. The overall effect of this sentence is that it is of 65 months with a total of 25 months left to serve. I set a non-parole period of 46 months, which is approximately 70 per cent of the overall sentence. The non-parole period commences on the backdated date of 8 January 2015 and ending six months from today on 7 November 2018.
Orders
34. The orders of the Court are:
1. In relation to the sentences imposed by Penfold J on 26 August 2014, the good behaviour order is cancelled and the offender is resentenced as follows:
(a)Charge CC2013/2756 - using an offensive weapon likely to cause grievous bodily harm, he is sentenced to 22 months imprisonment commencing on 8 January 2015 and ending on 7 November 2016;
(b)Charge CC2012/6651 - unlawful confinement, he is sentenced to three years imprisonment commencing on 8 July 2016 and ending on 7 July 2019;
(c)Charge CC2012/6385 - assault occasioning actual bodily harm, he is sentenced to 22 months imprisonment commencing on 8 July 2016 and ending on 7 May 2018;
2. On the charge of recklessly inflicting grievous bodily harm (charge XO2017/31085), the offender is sentenced to imprisonment for 11 months from 8 July 2019 until 7 June 2020.
3. The non-parole period starts on 8 January 2015 and ends on 7 November 2018.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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