R v Wright
[2019] ACTSC 146
•6 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wright |
Citation: | [2019] ACTSC 146 |
Hearing Date: | 6 June 2019 |
DecisionDate: | 6 June 2019 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – assault occasioning actual bodily harm – unprovoked punch to the side of the victim’s face resulting in multiple fractures of the cheek bone – limited criminal history – plea of guilty – personal circumstances of the offender considered – custodial sentence served by way of intensive correction |
Legislation Cited: | Crimes Act 1900 (ACT), ss 20, 24 |
Parties: | The Queen (Crown) James Wright (Offender) |
Representation: | Counsel P Dixon (Crown) S Boxall (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Number: | SCC 229 of 2018 |
MOSSOP J:
Introduction
The offender, James Wright, entered a plea of guilty to one count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), the maximum penalty being imprisonment for five years. On the indictment this was an alternative count to a charge of reckless infliction of grievous bodily harm contrary to s 20 of the Crimes Act, but the plea was accepted in full satisfaction of the indictment.
Facts
On 27 July 2017, the victim of the offence, a man who did not know the offender, was socialising with a friend at the Top Pub in Queanbeyan. The victim had a couple of drinks before he and his friend decided to continue drinking in Civic.
At around 12.30am on 28 July 2017, the victim and his friend arrived in Civic and went to the Mooseheads Nightclub where they continued drinking and playing pool. At around 2.30am, the victim and his friend parted ways and the victim decided to go to the Cube Nightclub where he continued to drink.
At some point, the victim went outside the club to the front entrance to have a cigarette. Whilst outside he met two males who he had seen inside the club earlier, namely the offender, James Wright, and his friend, who I will refer to as Mr S. The offender was wearing jeans, however he was not wearing a shirt. He introduced himself as James.
The victim left Cube for a short period and, at around 3.40am, returned back to Cube and went inside where he observed the offender and Mr S. The victim stayed at Cube until it closed.
He then returned to Mooseheads, meeting with the offender and Mr S again. The group had a conversation, during which the offender mentioned he had to collect his identification from the rear of the Cube Nightclub. The victim decided to walk with the offender and Mr S back to Cube. The victim said that he wanted to continue drinking, however all the clubs were shut. The offender and Mr S then invited the victim back to their house to keep on drinking. The victim agreed and decided to go home with both males.
At around 5.00am, the victim, the offender and Mr S returned to the Cube Nightclub and recovered the offender’s identification.
Following this, the victim, the offender and Mr S went to the taxi rank on Alinga Street and got into a taxi. The offender sat in the front of passenger seat and the victim and Mr S in the rear passenger seats. The offender spoke to the taxi driver and told him to drive to an address in O’Connor.
At around 5.15am, the victim, the offender and Mr S arrived at Mr S’s residence in O’Connor. They entered the residence and sat on the lounge in the living area and continued to have a general conversation.
At this time, the offender was sitting opposite to the victim and Mr S was in the kitchen. The three men continued to talk, including discussing people they knew. At some point during the conversation, both the offender and Mr S became more aggressive in their responses. A short time after, the offender stood up from where he was sitting and walked past the victim. The offender said he was going to use the toilet.
The victim remained seated and began watching the television located in the living area, Mr S at this point was still in the kitchen. A short time later, the victim felt a sudden sharp pain to the side of his face causing significant pain as a result of being struck with a fist. The victim immediately placed both hands over his face and could feel blood running from his nose onto his hands. The victim noticed his vision became blurry, however he remained conscious. The victim did not see the strike to his head, however he observed the offender standing immediately behind him yelling words to the effect, “Get out, you’re full of shit”. The victim was fearful he would be struck by the offender again and so got up off the lounge and proceeded to the front door. The bleeding from the victim’s nose was so significant that there was blood dripping on the floor.
The victim proceeded out of the front door and down the street. He was unsure where he was, however he noticed he was on Westgarth Street in O’Connor. The victim contacted 000 and asked for an ambulance. He took a number of photographs of himself so that he could show police what had happened to him. A short time later, an ambulance and police arrived at the location and the victim was taken to Calvary Hospital.
Upon police attendance, police conducted a foot patrol in the area. Police proceeded to a block of units on Moorhouse Street in O’Connor which appeared to be the complex described by the victim. Police observed blood droplets at the front of the house and on the front door of one of the units. Police knocked on the front door and a short time later Mr S answered the door. Police confirmed Mr S was the occupier of the residence. Mr S told police a false story that he was home by himself and had been sleeping and that he did not know how the blood came to be on the front door. Police gained permission from Mr S to enter the residence. No other persons were located in the residence, however police observed droplets of blood on the carpet. A search warrant was later executed on Mr S’s residence where several stains on the carpet were identified as blood. Forensic analysis confirmed the presence of the victim’s DNA.
A search warrant was conducted on the offender’s residence, which was also in O’Connor. The offender participated in a Record of Search Warrant. The offender gave false answers in relation to the allegations of assault.
On 4 October 2017, the victim participated in a photo board identification. At that time he identified both the offender and Mr S.
As a result of the blow struck by the offender, the victim suffered the following injuries:
a) Fractures of the left zygomatic maxillary complex with associated bruising.
b) A depressed left zygoma with decreased facial projection on the left. The fracture extended from his cheekbone, to his upper jaw and also extended to his eye socket.
In lay terms these injuries may be described as multiple fractures of the cheekbone. The victim required surgery, including an open reduction and internal fixation procedure to treat the fracture. The screws and plates inserted during this procedure are likely to have to remain in place permanently.
Victim impact statement
A victim impact statement was read to the court and I take it into account in determining the appropriate sentence. The victim described that the assault has affected every aspect of his life and described it as having completely ruined his life. It is clear that the impacts of the assault came against a background of other matters affecting the mental health of the victim. However, it is also clear that the assault has exacerbated his post‑traumatic stress disorder (PTSD). He reports that his children are the only reason that he continues to survive and that he swings between being suicidal to homicidal. He also describes being hypervigilant and having regular panic attacks since the assault. He describes the exacerbation of PTSD as being the final “nail in the coffin” so far as his capacity to work is concerned and hence the assault having a significant financial impact upon him. He suffers grief and loss about not being able to have a normal life.
Objective seriousness
The attack on the victim was unprovoked. The victim was attacked from a point at which the victim could not see the punch coming or defend himself. While it can be said that there was only one punch, having regard to the circumstances in which it was inflicted and the results of that punch, that does not indicate that the conduct was not very serious. The injury to the victim was significant involving a fracture of the cheekbone, upper jaw and eye socket. He has been required to undergo surgery and have plates and screws inserted. I assess the objective seriousness of the offence as being in the high range for an assault occasioning actual bodily harm.
Subjective circumstances
The personal circumstances of the offender are described in an intensive correction order assessment report. The offender is 29 years old. He is one of three children to his parents. His parents separated during his early adolescence. The offender has three children aged between five and 13. He has full custody of his two youngest children who are aged five and six respectively, although they have no contact with their mother. He has had no recent contact with his eldest child, who has a different mother, and appears to be in her mother’s custody.
The offender completed school to Year 9. After that he has an inconsistent employment history. He exited the labour market two years ago to look after his sick mother and two young children and has been reliant upon social security payments since then.
He reported being involved with an antisocial peer group in the past but described ceasing ties with that group after the birth of his second child in 2012. He denied any association with anyone involved in criminal activity. The evidence about relevant drug use is inconsistent. While the offender denied any illicit drug use since about seven years ago, other evidence available to the author of the pre-sentence report indicated daily cannabis use up to approximately 12 months ago.
His criminal history discloses multiple alcohol-related charges and the circumstances of the current offending are clearly consistent with intoxication at the time of the offence.
He did not appear to the author of the pre-sentence report to accept responsibility for his actions, telling the author that he had no recollection of the offences and had pleaded guilty upon the advice of his lawyer. Two references, one from his sister and one from a long-term friend, however are consistent with acceptance of responsibility and remorse for his conduct and I accept that evidence.
He is assessed by the author of the pre-sentence report as having a medium to low risk of general reoffending and was assessed as not yet being ready to engage in offence specific interventions. He was assessed as suitable for community service work. The report indicated that he was non-compliant with a community service work order in 2012. He is assessed as suitable for an intensive correction order. If such an order was made then alcohol use and anger management and antisocial attitudes would be targeted.
The two references to which I have referred indicate that the conduct in question was out of character for him and that he is a devoted carer for the two of his children who live with him and also the carer for his disabled mother.
Criminal history
[Redacted for legal reasons.] In 2008 he was convicted of offensive behaviour in a public place. In 2009 he was bound over to keep the peace, as well as being convicted for unlicensed driving and drink-driving, and riding in or driving a motor vehicle without consent.
In 2012 he was convicted of driving while disqualified in both New South Wales and the Australian Capital Territory. He was also convicted of driving an uninsured vehicle and unregistered vehicle.
Plea of guilty
The offender appeared in the Magistrates Court on 2 May 2018, charged with recklessly inflict grievous bodily harm and a backup charge of assault occasioning bodily harm. He pleaded not guilty to both charges on 25 May 2018.
He was committed to stand trial in the Supreme Court on 24 August 2018. On 17 September 2018, an indictment was filed with the Supreme Court charging him with recklessly inflict grievous bodily harm and, in the alternative, one count of assault occasioning actual bodily harm. On 15 November 2018, the matter was listed for a trial callover on 3 April 2019. On 27 March 2019, the offender pleaded guilty to the alternative charge on the indictment.
Having regard to his plea of guilty and the time it was made, I will reduce the custodial sentence that I would otherwise have imposed by approximately 10%.
Time in custody
The offender has spent no time in custody as a result of the offending.
Consideration
The offending is serious. It is not explained other than by drunken aggression and stupidity. Having regard to the extent of the injuries and the circumstances in which the offence occurred, I consider that the only appropriate sentence is a custodial one. Although the objective seriousness of the offence is high, having regard to the limited criminal history of the offender and his personal circumstances, I consider that the starting point is a sentence of 15 months imprisonment reduced to 13 and a half months on account of the plea of guilty. I consider it appropriate that the sentence be served by way of intensive correction and that there be a period of community service incorporated as part of that order.
Orders
The orders of the Court are:
1. The offender is convicted and sentenced to imprisonment for a period of 13 months and 15 days months commencing on 6 June 2019 and ending on 20 July 2020.
2. The sentence is to be served by way of intensive correction in the community with the additional condition that the offender complete 100 hours of community service within 12 months.
| I certify that the preceding thirty-four [34] are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 27 June 2019 |
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Amendment
27 June 2019 At catchwords replace “facing” with “face” Catchwords
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