R v XXL
[2022] ACTSC 24
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v XXL |
Citation: | [2022] ACTSC 24 |
Hearing Date: | 11 February 2022 |
DecisionDate: | 11 February 2022 |
Before: | Mossop J |
Decision: | See [46] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction order – further offence – recklessly inflicting grievous bodily harm – two additional offences of damaging property – offender was a young person at the time of initial offending – offender intended to strike ex-partner’s new partner but instead struck another person – intended conduct was in the nature of domestic violence offending – offending at upper end of mid-range of objective seriousness – medium to high risk of general reoffending – unresolved substance dependence – significant criminal history – plea of guilty – whether there is a “remainder of the offender’s sentence” under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT) where the intensive correction order has expired at the date of sentence – no remainder exists – intensive correction order not cancelled – sentence of imprisonment imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 65, 79 Crimes (Sentencing) Act 2005 (ACT), ss 10, 63 Criminal Code 2002 (ACT), ss 310, 403 |
Cases Cited: | Henry v The Queen [2019] ACTCA 5 R v Campbell [2010] ACTCA 20 R v XXL [2019] ACTSC 94 |
Texts Cited: | Explanatory Memorandum, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) |
Parties: | The Queen ( Crown) XXL ( Offender) |
Representation: | Counsel M Dyason ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 105 of 2021 |
MOSSOP J:
Introduction
On 13 December 2019, I sentenced XXL to 28 months’ imprisonment for one offence of aggravated robbery (CH2018/14718) contrary to s 310 of the Criminal Code 2002 (ACT). I ordered that the sentence be served by way of intensive correction order (ICO). The ICO commenced on 12 December 2018 and was due to expire on 11 April 2021: see R v XXL [2019] ACTSC 94.
Prior to the expiry of the ICO, XXL committed further offences. On 10 November 2021, he pleaded guilty to committing one count of recklessly inflecting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (CC2021/1145) on 31 December 2020. The maximum penalty for this offence is 13 years’ imprisonment.
The offender has also asked the court to take into account two additional offences when sentencing him, being two counts of damaging property contrary to s 403 of the Criminal Code (CC2021/1146 and CC2021/1147). I will take these into account in the manner described in R v Campbell [2010] ACTCA 20 at [47]-[50]. Had he been sentenced for these offences separately, the maximum penalty for each of these offences would have been 10 years’ imprisonment, a fine of $160,000 or both.
Facts
The facts are agreed and are, in summary, as follows.
In the afternoon of 31 December 2020, the offender drove to an address in Wanniassa, being the residential address of his former partner and mother of his child, OG. OG, TD and the victim of the offending were all inside the house. Around 3:50pm, the victim and TD heard a loud noise and TD walked outside. Arriving outside, she saw that the back window of her Holden Rodeo had been smashed. This is the offence of damaging property (CC2021/1146). She saw the offender carrying a silver tyre iron.
TD heard the offender yell “you come here”. The victim exited the house and observed the offender walking in her direction while holding a silver tyre iron. The victim then walked backwards into the house and the offender entered the house after her. The victim yelled at the offender that she was female and asked him not to hit her. The offender used the tyre iron to strike the victim on the left side of her head. This is the offence of recklessly inflicting grievous bodily harm (CC2021/1145). She fell to the ground and the offender exited the house.
TD, who had remained outside, observed the offender run to a silver Holden VE Commodore and yell out “you’re a stupid slut”. The offender drove away in the vehicle and TD returned inside the house, where the victim was requesting help with blood running from her head. TD requested help from OG and then called emergency services.
Later, OG went outside and observed that the back window of her vehicle had also been smashed. This is the second offence of damaging property (CC2021/1147).
At 4:23pm, the offender called emergency services and reported that he received text messages from OG to the effect that people had come to her house, smashed car windows and tried to bash her new partner. He relayed that OG was making enquiries as to whether he was responsible.
At 4:49pm, the victim arrived at the Canberra Hospital having been transported there by ambulance. She was admitted for treatment, and that evening underwent a cranioplasty under general anaesthetic. This involved the removal of bone fragments and the insertion of a titanium mesh plate and three screws in her skull. The wound was then closed with four sutures. The victim was discharged from Canberra Hospital on the morning of 4 January 2021.
The report of Dr Amanda Barry, dated 12 February 2021, concluded that the victim had sustained a traumatic brain injury, subdural haemorrhage, depressed left temporal skull fracture, left temporal skull laceration and a left subgaleal haematoma. Dr Barry also noted that the victim sustained two complications, being bleeding in the brain, and posttraumatic seizures requiring antiseizure medication. In relation to seizure activity the report provided that the victim “developed the significant complication of seizure activity requiring anticonvulsants medication. This can be attributed to the brain injury and/or as a result of the cranioplasty”.
The offender’s partner at the time, NC, told police on 21 January 2021 that the offender had attended her address with a bleeding middle finger “a couple of weeks ago”. The offender had said that he was “off his head” and had “bashed someone at [OG’s] house”. He also stated that he had “bashed someone who was playing baby daddy to [his] son”, namely OG’s new male partner. NC also confirmed that the offender had taken her vehicle on 31 December 2020 “to go get weed from Kambah or somewhere”.
Victim impact statement
The victim provided a victim impact statement. She described how the life that she had envisioned, including a career in hairdressing or car-related pursuits, is no longer possible. She reported struggling with speech, memory and comprehension, and suffering from seizures and vivid nightmares. Her statement noted she also suffers from paranoia and feeling as though she cannot trust anyone, suicidal thoughts and social isolation since the incident.
The victim described the impacts on her family. She reported being dependent on her partner TD since the incident, and that the stress from the incident has impacted her mother’s health. The victim also recalled struggling to remember days she spends with her daughter and feeling like she misses out on watching her grow.
The victim’s partner TD also provided a victim impact statement. This made clear the significant consequential effects of the victim’s injuries upon her. In particular, the victim’s substantially increased need for TD’s support in dealing with seizures, her loss of memory as well as the risk of further significant injury. The statement is a reminder of the downstream consequences of the offender’s offending and the need, in any sentence imposed, to recognise the harm done not only to the individual victim but also to those around the victim and the community more generally.
Objective seriousness
In assessing the objective seriousness of the principal offence, it is necessary to make the following points:
(a)The degree of recklessness is significant. The offender used a substantial metal object to strike the side of the victim’s head. The offender must have recognised that there was a significant risk of really serious bodily injury.
(b)At the time of the attack, the victim was retreating, unarmed and was not any threat to the offender.
(c)The offender attacked the victim because he was under the misconceived belief that she was his ex-partner’s new male partner. Given the misconception, the attack can be seen as an absolutely inexcusable attack on a completely innocent victim.
(d)However, given the misconception under which he was operating, it is relevant to consider, in assessing the objective seriousness of the offending, what the offender thought he was doing. He thought that he was attacking the new male partner of his female ex-partner. Had that in fact been the case, such an attack would be appropriately characterised as a form of domestic violence aimed at the oppression of his ex-partner through violence or the fear of violence. It reflects the ongoing desire by the offender to interfere with and control his female ex-partner’s life even though the actual violence was directed to another person. It would be an example of the oppression of women by their male ex‑partners who are unprepared to recognise the autonomy of their female ex‑partner to have her own life. Therefore, at least so far as his state of mind was concerned, the offending was in the nature of a domestic violence offence. The characterisation of the conduct is relevant because it is relevant to the characterisation of the offender’s state of mind at the time of the offending.
(e)The injuries are significant. They are set out earlier in these reasons. In light of the evidence of Dr Barry, I concluded beyond reasonable doubt the causal connection between the offending conduct and the subsequent seizure activity described in the victim impact statements. Counsel for the offender accepted that this was the case. Brain injury and seizures are, in any event, undeniably some of the suite of consequences reasonably likely to occur as a consequence of a blow to the head such as was inflicted in this case.
(f)There was a degree of premeditation in that the offender came armed with the tyre iron.
(g)The offender was on conditional liberty at the time of the offending as he was the subject of the ICO which I imposed in 2019.
The offending is at the upper end of the mid-range of objective seriousness for the offence of recklessly inflicting grievous bodily harm.
Subjective circumstances
The offender’s subjective circumstances were set out in a pre-sentence report dated 4 February 2022. Additional information is provided in a number of references and other letters which became Exhibit 2.
The offender is 23 years old. He was 21 years old at the time of the offending. He reported that he had a positive upbringing in Michelago, New South Wales. He was not exposed to alcohol or drug abuse, nor family violence in the home. He maintains a close supportive relationship with both parents and his siblings.
The offender is the father of two children. The eldest resides with the offender’s parents on a full-time basis, and the younger resides with the mother. The offender reported that his relationship with the mother and the younger child is volatile, marred with illicit substance use and family violence. Child and Youth Protective Services noted they have concerns in relation to family violence, illicit substance use and the mental health of both parents should they reside together.
The offender has stable accommodation with his parents in Michelago.
The offender left formal education at the end of Year 9. He has maintained short periods of employment in labouring positions, but has otherwise mainly relied on income support payments. Both the offender and his mother noted that he may be able to work with his brother at a roof truss and framing factory in Hume. The offender has no significant debts.
The offender denied any history of problematic alcohol use but commenced using methamphetamine at the age of 14. The offender reported consuming approximately 0.5 g of methamphetamine daily at the time of the offence and using cannabis. He advised that his illicit substance use, and difficulty with emotional regulation and anger management, contributed to his offending.
The offender had engaged with counselling during previous periods of court-ordered supervision and was later accepted into the Wayback residential program. He was unable to attend when a bail application was denied. He claims to have maintained abstinence since March 2021. He applied to the Oolong House Residential Rehabilitation Service and commenced that program on 7 July 2021 while on bail. Oolong House reported that he initially engaged well but was exited from the program on 1 October 2021 after an incident where he consumed alcohol in breach of the facility’s rules. He has expressed an intent to apply again for a position at Oolong House and to complete the program. His mother identified a significant positive change in her son during and after his stay there.
The offender displayed some insight into his offending and its impact on the victim. Despite initially minimising his responsibility by stating the victim looked like a male, he later acknowledged that his behaviour was unlawful and unjustified.
The author of the pre-sentence report assessed the offender as having a medium to high risk of general reoffending, despite having prosocial family relationships, due to his difficulties maintaining prosocial behaviours, relapses into illicit substance use, and failure to comply with previous court orders. He is assessed by that report as not suitable for community service work or a further ICO.
The letters and references were from his parents, his aunt, an officer from Alexander Maconochie Centre (AMC) in relation to his participation in the Solaris Therapeutic Community Program, an officer of Karralika in relation to his contact with that organisation, a letter from a past employer and a letter from an employee of Oolong House. The offender gave some brief oral evidence recognising the harm done to the victims. These letters and this oral evidence establish on the balance of probabilities the ongoing existence of support from the members of his family, that he remains motivated to participate in the life of his two children and that he recognises the link between drug use and reoffending. The evidence also establishes the offender has participated in the Solaris program at the AMC, has remained in contact with Karralika in relation to the possibility of a residential rehabilitation program and retains the potential for employment if living in the community. The letter from Oolong House describes the circumstances in which he was discharged from the facility. That evidence is consistent with him having difficulty complying with the constraints of such a program and the need for psychological counselling to help him deal with his addictions, anxiety and anger management.
Criminal history
The offender has a significant criminal history. He has convictions for aggravated robbery, armed robbery, trespass, destroying or damaging property, driving a vehicle taken without consent of the owner, receiving stolen property, common assault involving domestic violence, assault occasioning actual bodily harm, having goods in custody suspected of being stolen, possessing or using a prohibited weapon without a permit, possessing an offensive weapon, stalking or intimidation and resisting a police officer in the execution of the officer’s duty.
He has been previously sentenced to imprisonment on a number of occasions for common assault, assault occasioning actual bodily harm and destroying or damaging property. In 2019, he was given an ICO in relation to a sentence for aggravated robbery.
Plea of guilty
The plea of guilty was indicated during a criminal case conference and entered during the offender’s arraignment in the Supreme Court on 10 November 2021. A trial date had not been set at the time of the plea. In my view, a discount of approximately 15 percent is appropriate having regard to the timing of the plea of guilty and its utilitarian value.
Time in custody
The offender was remanded in custody from 17 March 2021 until 5 July 2021 in relation to these offences. He was granted bail on 5 July 2021 to attend Oolong House. He failed to appear for arraignment on 28 October 2021. A warrant for his arrest was issued. He has been in custody since 12 November 2021 until today. He has therefore spent 202 days in custody prior to today. If his sentence was backdated for the whole of this period, that would give a backdate date of 24 July 2021.
Counsel for the offender also submitted that it was appropriate to take into account the period of quasi-custody of 87 days when the offender was attending the Oolong House rehabilitation program. He submitted that this period of quasi-custody would be appropriately accounted for by backdating the sentence by 44 days, representing a 50 percent equivalence to full-time custody. The Crown made no submissions on this issue.
Comparable cases
The Crown provided a table of cases involving sentences for recklessly inflicting grievous bodily harm. They were R v Ngata [2020] ACTSC 9; R v Krook [2020] ACTSC 93; Henry v The Queen [2019] ACTCA 5; R v McBride [2017] ACTSC 102, R v Torbert [2015] ACTSC 331. These cases demonstrated starting points for the charge of recklessly inflicting grievous bodily harm of between 22 and a half months’ and seven years’ imprisonment. Within this broad range, the cases are obviously sensitive to the combination of objective and subjective circumstances.
ICO
An ICO was imposed by me on 13 December 2019. The criminal history records that in September 2020, the offender was sentenced in relation to further offending that occurred on three dates in January 2020. In relation to three offences, he received terms of imprisonment. He does not appear to have been referred to the Supreme Court for cancellation of his ICO as required by s 65(4) of the Crimes (Sentence Administration) Act 2005 (ACT). There was no evidence as to why this was the case. Parties provided no explanation as to why it might have been the case.
The present offending occurred on 31 December 2020. The sentence being served by way of ICO was due to conclude on 11 April 2021. Section 65 of the Crimes (Sentence Administration) Act requires the court, on sentencing the offender in relation to the current offence “as soon as practicable” after he is “convicted or found guilty” of the current offence, to act as set out in s 65(2). That requires the court to cancel the ICO unless cancellation is not in the interests of justice and if the ICO is cancelled, “order that the remainder of the offender’s sentence be served by full-time detention”. Given that the term of the sentence served by ICO has now expired but had not expired at the time of the offending, the question arose whether the reference to “remainder of the offender’s sentence” should be interpreted as a reference to the balance of the sentence outstanding at the time of the offending, or the balance of the sentence outstanding at the time when the offender is “convicted or found guilty” of the subsequent offence. The submission of both parties was that “remainder” should be interpreted as the remainder of the sentence as at the date of the offender being convicted or found guilty of the subsequent offence. In the present case, that would mean that there is no remainder of the sentence and that there is no period of full-time detention that can be ordered to be served. Neither party referred to s 79 of the Crimes (Sentence Administration) Act, which provides that a court or the Sentence Administration Board may act under Ch 5 in relation anything arising during the term of an ICO even if the term of the order has ended.
The explanatory memorandum for the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) does not assist in resolving the question of interpretation. The issue has been touched upon number of cases. In R v Dimitrov (No 2) [2020] ACTSC 54, I identified the issue at [17] but was able to avoid resolving it in that case because it was not in the interests of justice to cancel the ICO. Similarly, in R v Gunner (No 2) [2021] ACTSC 300, Elkaim J identified the issue but was able to avoid it by reaching the conclusion that it was not in the interests of justice to cancel the ICO. In R v Williams‑Savage [2021] ACTSC 271, a period of 12 days of an ICO remained after the relevant offending. At [41], I explained why was possible to deal with the matter in a way which avoided resolution of the issue in circumstances where only limited submissions had been made by the parties.
The interpretation contended for by both parties would generate an undesirable incentive for accused persons to delay their plea of guilty to a subsequent offence until after the expiry of a current ICO. By doing so, they would preclude the court from imposing any remainder as full-time detention. However, notwithstanding s 79 of the Crimes (Sentence Administration) Act, that is a reasonably open interpretation of the provision. Notwithstanding that such an interpretation may create perverse incentives, when the language of the statute is not clear, the extrinsic material provides no relevant guidance and the effect of the alternative interpretation would be to significantly increase the exposure of a sentenced person to loss of liberty, it is an interpretation which can be adopted and, notwithstanding the very limited assistance received from the parties on this question, I will proceed on that basis.
Having regard to the fact that there is no remainder of the sentence to be imposed, I do not consider that the cancellation of the ICO is in the interests of justice. I will, however, take into account the existence of the ICO in the manner in which I take into account the period of presentence custody.
Consideration
At the time of the earlier sentence imposed upon the offender, I was persuaded that it was appropriate to make an ICO. Factors influencing that approach were the offender’s youth, the correlation between his methamphetamine use and his offending and his prosocial supports. The ICO gave him an opportunity to achieve rehabilitation. That opportunity has been missed. I accept that the offender recognises the need to address his illicit drug use and recognises the association between his illicit drug use and his offending. I also accept that his long‑suffering parents remain willing to support him. However, having regard to his criminal history and the gravity of the present offending, the sentencing goal of rehabilitation must, in my view, be subordinated to other purposes of sentencing, in particular: deterrence of the offender from further offending, general deterrence of this kind of offending, making the offender accountable for his actions, denunciation of his conduct and, significantly, recognition of the harm done to the victim of his offending.
It is also necessary to take into account the offences in the schedule for which the offender will not be otherwise punished. Both of these are relatively minor examples of the property damage offence having regard to its unlimited nature, but are both properly characterised as domestic violence offences. They involve the damaging of property directed to the oppression of the offender’s former female partner and the mother of his child.
As I have indicated earlier, in relation to the ICO, I am proceeding on the basis of the interpretation contended for by both parties that there is no remainder of the sentence that may be imposed. I have therefore concluded that it is not in the interests of justice to cancel the order. However, the breach of the order and the exposure of the offender to the cancellation of that order, had he admitted his guilt at an early stage, can be considered in determining how his pre-sentence custody is to be taken account of under s 63 of the Crimes (Sentencing) Act 2005 (ACT). Having regard to the existence of the ICO and the fact that no part of it may now be imposed, I reject the submission of the offender that any period of his quasi-custody at the Oolong House rehabilitation facility should reflected in any backdate of his sentence. I will therefore sentence him on the basis that the sentence for the current offence should be backdated to 24 July 2021, but not beyond that.
So far as the reckless infliction of grievous bodily harm is concerned, the threshold in s 10 of the Crimes (Sentencing) Act has clearly been passed. Further, it is a case where the only appropriate sentence would be one of full-time imprisonment. You cannot hit a completely innocent person on the head with a tyre iron causing them a traumatic brain injury and not go to jail.
In my view, the appropriate starting point is period of six years’ imprisonment reduced to five years and one month on account of the plea of guilty.
In my view, the non-parole period should be set at approximately 60 percent of the head sentence. That gives an appropriate minimum term of three years and one month’s imprisonment to be served prior to eligibility for parole. It also recognises the offender’s youth and potential for rehabilitation but the fact that at this stage, those prospects for rehabilitation must be recognised as guarded.
Plainly, the grant of parole will be a matter for the Sentence Administration Board but careful consideration will need to be given to the extent of rehabilitation from illicit drug use and the potential benefit of a period in residential rehabilitation during the period of parole.
Orders
The orders of the Court are:
1. On the charge of recklessly inflecting grievous bodily harm (CC2021/1145), the offender is convicted and sentenced to imprisonment for five years and one month commencing on 24 July 2021 and ending on 23 August 2026.
2. The non-parole period commences on 24 July 2021 and ends on 23 August 2024.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 1 April 2022 |
10
9
0