R v Williamson
[2021] ACTSC 58
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Williamson |
| Citation: | [2021] ACTSC 58 |
| Hearing Date: | 13 April 2021 |
| Decision Date: | 13 April 2021 |
| Before: | Elkaim J |
| Decision: | See [30] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intensive corrections order – excessive self defence |
| Legislation Cited: | Crimes Act 1900 (ACT), s 25 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33 |
| Parties: | The Queen (Crown) Jade Harley Williamson (Offender) |
| Representation: | Counsel |
| K Marson (Crown) | |
| B Morrisroe (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Boxall Legal (Offender) | |
| File Number: | SCC 192 of 2020 |
| ELKAIM J: |
1. On 25 February 2021, the offender was arraigned on an indictment, containing a single count, dated 17 February 2021. He pleaded guilty to the charge of unlawfully causing grievous bodily harm contrary to s 25 of the Crimes Act 1900 (ACT) (SCCAN2021/19). The maximum penalty is imprisonment for 5 years.
2. The detailed facts are contained in the Agreed Statement of Facts which forms part of
Exhibit A. The following is a summary: On 30 May 2020 a Mr Curtin went to his friend’s
18th birthday party. He had a great deal to drink, mixing both beer and spirits. He
became drunk.3. At about 11:00pm, now thoroughly drunk, Mr Curtin was walking home. He decided to supplement his intoxication with cannabis. He went to a house in Charnwood which he
knew to be the residence of a ‘dealer’. He asked the dealer, Ms T, to sell him some
cannabis. She told him that she had amended her ways and no longer sold this drug. Mr Curtin did not take this information well and an argument developed. Mr Curtin was
particularly concerned that Ms T’s comments were of a racist nature.
4. Ms T came outside, via a window (because her door was broken) and continued the argument. Once again Mr Curtin thought her comments were racially inspired. He
pushed her. She responded “don’t push me”. At this stage the offender, who had been
inside the house, intervened. Holding a knife he stood between the two, thus far, verbal
combatants.5. Mr Curtin punched the offender in the face and put him in a headlock. He held the
offender’s hand (which had hold of the knife) as far away as he could. The offender
continued to struggle with Mr Curtin and was able to free his knife wielding extremity
and thrust the knife at Mr Curtin. He missed.6. The combat between the offender and Mr Curtin continued on the ground. Mr Curtin
punched the offender several times and thrust his knee into the offender’s mouth.
7. Ms T then joined the melee and began kicking Mr Curtin to his head. She followed by trying to put her fingers in his eyes. At the same time Mr Curtin had once again taken hold of the hand holding the knife. The fight continued with exchanges of unpleasantries, wrestling and traded punches. In the course of this activity Mr Curtin was cut on his face by the knife and suffered lacerations to his abdomen.
8. The offender also, somehow, sustained a laceration to his head. Mr Curtin was then able to take control of the knife, although at this stage he was on the ground. Emboldened by his possession of the weapon he called out to the offender and Ms T:
“Yeah, now you are both fucked. You wait until I fucking get up”.
9. Ms T kicked Mr Curtin in his legs to try and prevent him doing so. She then retreated back to her house. Mr Curtin then punched the offender to his head. He attempted to
take hold of Mr Curtin’s ankle. Mr Curtin responded by kicking him in the mouth.
10. Mr Curtin then disposed of the knife and ran away. No doubt succumbing to the alcohol, the fighting and his wounds, he soon tired and lay down under a tree. A local resident, having heard the above events, came out onto the street where he discovered Mr Curtin.
11. Mr Curtin pleaded for assistance. Rather than personally ministering to Mr Curtin’s wounds, the resident called ‘000’. An ambulance arrived and transported Mr Curtin to
Canberra Hospital where his wounds were treated. The abdominal wound had caused a hemopneumothorax which, without treatment, could have had severe consequences. An intercostal catheter was inserted and Mr Curtin was admitted to a ward. He was discharged on 2 June 2020. He was told to see his general practitioner after a few days
and to take “simple pain relief medications as required”. There is no Victim Impact
Statement nor any evidence of continuing medical problems. He will however remain with permanent scarring.
The Crown has asked me to infer that the victim suffered “emotional and psychological
injury”. Common sense would dictate such a conclusion but it does also depend on the
victim, despite his degree of intoxication, and his own intemperate behaviour, having a
reliable memory of the events.
As the above facts indicate, Mr Curtin was not without fault in the events. The offender’s
plea of guilty was entered, and accepted, on the basis of excessive self-defence.
14. The offender was born in 1982. He is one of two children. His parents separated when he was five years of age. He lived with his grandparents for seven years and then returned to the care of his mother and step-father. He maintains a positive relationship with his mother, step-father and sister.
15. The offender is single. He has no dependents. He lives alone.
16. After completing Year 10 the offender took up employment in the construction industry which continued for about 15 years. His association with unseemly characters led to a cessation of his employment. Since then he has been largely unemployed.
17. The offender has a criminal record which is not extensive but does include a conviction for common assault. There is a conviction in Queensland for being drunk in a public place.
18. The offender clearly has had a problem with alcohol, sometimes drinking up to 12 standard drinks 3 or 4 times a week. At the moment he is down to drinking only on Friday and Saturday evenings when he consumes 4 to 6 standard drinks.
19. The offender has also been a regular user of cannabis. There was a time that he did not use the drug but seems to have resumed recently. Nevertheless he says he no longer associates with antisocial persons. Rather he now prefers mountain biking and fishing.
20. The Pre-Sentence Report describes the offender’s mother stating that an assault
suffered by the offender has led to some cognitive impairment. He is taking medication for this impairment although the material, besides the medical record in Exhibit 1, does not provide sufficient detail.
A letter from the offender’s mother and stepfather (Exhibit 1) describes a decent man
whose general behaviour is entirely inconsistent with the events surrounding the
offending.22. The offender told the authors of the Pre-Sentence Report that while he was acting in
self-defence he nevertheless accepted “full responsibility for his actions”. He also
sympathised with the plight of his victim. I accept that the offender has shown genuine
remorse for his actions.
The authors say that there is “a medium risk of general re-offending”. Nevertheless,
they observe that he “maintains protective factors in his stable accommodation and
pro-social supports of his family”. Absent the opinion expressed in the Pre-Sentence
Report I would not have viewed the surrounding circumstances as indicating other than a low risk of re-offending.
24. As to the facts of the crime itself, the taking hold of a knife and the involvement in a physical confrontation armed with such a weapon, render the offence of about medium objective seriousness. This is reflected in the nature of the injury suffered by Mr Curtin.
25. At the same time it must be recognised that Mr Curtin was aggressive and prepared to inflict harm both upon the offender and Ms T. But for the excessive use of force the
offender’s actions would have been seen as self-defence not only of his own welfare
but also that of Ms T.
26. The provisions of the Crimes (Sentencing) Act 2005 (ACT) are important, especially ss 6, 7 and 33. They must be taken into account, but so too must s 10 which says that a sentence of imprisonment should be a last resort. I agree with the Crown that the nature of the crime and its consequences make imprisonment inevitable. But full-time imprisonment is not inevitable.
27. The events, as described above, the remorse and the plea of guilty, combine to permit
me to take a less stringent approach. This is also enforced by the offender’s intent to
stop using cannabis and to maintain his diminished consumption of alcohol.
28. The offender has been in custody for 37 days, which must be taken into account. He is also entitled to a discount for his plea of guilty.
29. The Pre-Sentence Report says that he is a suitable candidate for an Intensive Corrections Order. The Crown, in a clear indication of a fair approach, does not oppose this course. I agree with both parties that it is appropriate.
30. I make the following orders:
(i) For the offence of unlawfully causing grievous bodily harm the offender is sentenced to 18 months imprisonment to commence today and end on 12 October 2022.
(ii) The sentence of imprisonment is to be served in the community by way of Intensive Corrections Order.
I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.
Associate:
Date: 13 April 2021
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