The Queen v Wayne Christopher Price
[2015] ACTSC 324
•23 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Wayne Christopher Price |
Citation: | [2015] ACTSC 324 |
Hearing Date(s): | 21 October 2015 |
DecisionDate: | 23 October 2015 |
Before: | Robinson AJ |
Decision: | See [30]. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – cause grievous bodily harm – plea of guilty – offending in response to provocation |
Legislation Cited: | Crimes Act 1900 (ACT), s 25 |
Cases Cited: | R v Trevenna [2004] NSWCCA 43 Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 |
Parties: | The Queen (Crown) Wayne Christopher Price (Offender) |
Representation: | Counsel Mr K Lee (Crown) Ms S Saikal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 11 of 2015 |
ROBINSON AJ:
Background
The offender, Wayne Christopher Price, stands for sentence in relation to one count of causing grievous bodily harm in contravention of s 25 of the Crimes Act 1900. This offence carries a maximum penalty of 5 years of imprisonment.
The offender pleaded guilty to this charge on arraignment before Chief Justice Murrell on 26 August 2015.
The Offence
According to the agreed statement of facts tendered by the Crown, the complainant, Stephen Jones, who had been a friend of the offender’s for a number of years, and a woman, Heather Prindable, attended the offender’s home on the afternoon of 21 August 2014. After some time the complainant left the offender’s home, leaving the offender alone with Ms Prindable.
A short time later the complainant returned to the offender’s home in an agitated and intoxicated state. The complainant then initiated an argument with the offender. During the course of this argument the complainant punched the offender a number of times. The offender was able to block most of these punches, however he was struck in the head a number of times. During the argument the complainant produced a 14-inch hunting knife, with which he threatened to cut the offender’s throat. The complainant waved the knife in the air and made stabbing motions. This argument continued for a period of approximately 15-20 minutes.
Ms Prindable was present during the initial stages of the argument, however at some point she became scared of the complainant and retreated to a bedroom, leaving the offender and the complainant alone.
At some point during the altercation Mr Jones dropped the knife and said “you take the knife. You take the fucking knife”, before sitting down. The offender then picked up the knife and threw it into bushes outside his home. When the offender re-entered his home Mr Jones said “Go get the fucking knife, so I can put it back in my sheath”. The offender then went to retrieve the knife from where he had discarded it, suggesting to Mr Jones that he get a beer to settle himself down.
Mr Jones walked to the offender’s kitchen to retrieve a beer. At this time the offender went to his front door and picked up a black aluminium baseball bat. He then entered his kitchen and attacked Mr Jones with the baseball bat, striking him on the torso, arms and head. At some point during this attack Mr Jones fell to the ground, the offender, who was fearful that Mr Jones would attack him, then continued to strike him every time he tried to get up.
During the course of this attack the offender knocked a beer bottle from Mr Jones’ hands, causing a laceration on his arm.
While Mr Jones was on the ground the offender asked Ms Prindable to contact police. Ms Prindable handed a phone to the offender, and he spoke with the dispatcher and requested police attendance at his residence. The offender stayed besides Mr Jones as he waited for police, at one point telephoning them again to ensure they were on their way. When told that police would be in attendance soon the offender walked outside his home to wait for them.
During these events the offender suffered a small abrasion to his left check which bled lightly. Mr Jones suffered more serious injuries, which I will detail below.
The offender took part in a recorded interview with police during which he made admissions to striking Mr Jones, stating that he did so in self defence.
It was agreed by the parties, and indeed it is self-evident on the agreed facts, that the subject offence has arisen in response to sustained and aggressive provocation by the complainant, who was armed and intoxicated, and who initiated a confrontation with the offender in his own home.
Zecevic
It was common ground between the parties that the issue of self defence had been engaged by the facts. It was further common ground that the test applicable to self defence in this instance was that prescribed in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645, where Wilson, Dawson and Toohey JJ stated at [16]:
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
The parties were in agreement that the second limb of that test, that is the proposition that there must be reasonable grounds for the belief held by the accused, was not satisfied, although they differed in the reasons they put to me for that being the case. The Crown submitted that there were not reasonable grounds as the moment for the use of self defence had in effect passed, as Mr Jones’ aggressive conduct had de-escalated by the time the offender attacked him. The offender’s counsel submitted that Mr Jones continued to pose a threat to the offender at the time of the offence, however she conceded that the response was excessive in the circumstances.
It is not necessary for me to make a precise finding in relation to these two competing submissions as to how self defence is negatived. The offender, through his plea of guilty, has accepted that the test in Zecevic has not been satisfied.
Both of the parties referred me to the case of R v Trevenna [2004] NSWCCA 43, where Santow JA summarised a range of factors relevant to the sentencing exercise in matters where the prospect of self defence has been raised, yet the defence has ultimately been negated. Santow JA’s analysis was confined to homicide cases where self defence was negated on the basis of excessive force; however it is nevertheless useful for present purposes. His Honour listed the relevant factors as follows at paragraph [45]:
Nonetheless generic factors, objective and subjective, repeatedly arise as relevant to sentencing in excessive self-defence cases whether at common law or under statute. I set these out below ... :
(a) the offender was carrying the weapon prior to the time of the offence or deliberately armed himself to rejoin an affray
(b) threat to offender's life from a stronger assailant or one who is armed
(c) an abusive history present in the relationship between the offender and the deceased
(d) contrition
(e) age
(f) character of the offender
(g) guilty plea, its value and timeliness
(h) the offender was the original aggressor
(i) the offender's previous criminal record
(j) the offender was on parole
(k) pre-planning of the offence
(l) the offender was charged with other offences related to the incident
(m) rehabilitation prospects
(n) dependent children
(o) drugs and/or alcohol involved in the incident
(p) depressive illness on the part of the offender
(q) continued attack after the deceased had been subdued
(r) the offender lied to police about his or her involvement in the crime
[references omitted]
The offender’s counsel submitted to me that a number of these factors were relevant and ought to be viewed as mitigating circumstances in the disposition of the present matter. She elaborated by reiterating to me the fact that the offender faced a threat from the complainant, who at some point was armed, the offender’s contrition, his plea of guilty, the fact that he was not the original aggressor, the fact that the offence was not pre-planned, the offender’s depressive illness and the fact that the offender alerted police to the altercation, and indeed went on to make significant admissions to police.
Impact of the Offence
After the offence Mr Jones was transported by ambulance to Canberra Hospital, where he was surgically treated for a broken jaw. This treatment involved the insertion of a titanium plate occasioning an operating scar. Mr Jones also suffered a large laceration to his left forearm, and a number of smaller lacerations to his head, hands and arm.
Mr Jones prepared a victim impact statement which was read in Court by the Crown Prosecutor. In this statement Mr Jones expressed the ongoing difficulties that he suffers due to the injuries inflicted upon him by the offender. These include difficulty speaking and eating certain foods. Mr Jones also wrote of the adverse psychological impact that the offence has had upon him.
Plea of guilty
The offender was initially charged on 8 November 2014 with recklessly inflicting grievous bodily harm and, in the alternative, causing grievous bodily harm. Following discussions between the parties the offender entered a plea of guilty to the charge of causing grievous bodily harm on 26 August 2015.
I am satisfied that this plea was entered at an early stage following the conclusion of relevant discussions between the parties. The plea also has substantial utilitarian value, accordingly I will discount the sentence I impose by approximately 20%.
Subjective matters
The offender is 56 years old, at the time of the offence he was aged 55. He appears on the material before me to have had a difficult and traumatic childhood. A number of the references tendered by the offender’s counsel spoke of the abuse that he and his siblings were subjected to by their father during his formative years, and of the suicide of his brother at a young age.
The offender told the author of the Pre-Sentence Report that he feels that his childhood “has contributed to much of the dysfunction he has experienced as an adult”. This proposition was corroborated by two letters from medical practitioners who have treated the offender that were tendered before me. Both of these letters stated that the offender suffers from major depression. The letter of Dr Paul Appleton dated 15 October 2015 shed some light on the offender’s hyper vigilance and the extent to which it may have contributed to his commission of the subject offence:
It is the impulse of all of us to survive and those of Mr Price’s background are primed to fight back in self-defence. As children and young persons they have rarely seen the exercise of calm negotiation of disputes and Mr Price appears, from what I have heard of his story, to have few if any stable people in his younger life to mentor him or act as role models. He would have an increased perception of fear and threat in situations like this attack and would be provoked easily.
The offender does not have any ongoing contact with his immediate family, which consists, as far as I was made aware, of two sisters and an 18-year-old son.
The offender has a long history of problems with the misuse of drugs and alcohol. The Pre-Sentence Report suggested that he had used heroin from 1979 until 2006. However, significantly, on the evidence before me it appears that the offender has managed to control his addictions in recent years. Mr Price informed the author of the Pre-Sentence Report that he commenced using methadone in 2006. A drug screening tool administered by the author of the Pre-Sentence Report on 29 September 2015 suggested that Mr Price does not have any current problems with illicit drug use.
The offender has a long history of employment as a labourer and roof tiler. He has recently been offered full-time employment as a tiler. A number of references were tendered by the offender’s counsel attesting to his work ethic, his generosity to his friends and neighbours, and the progress he has made in addressing difficulties arising from his traumatic childhood.
The offender has a significant criminal history spanning a period of more than 35 years. However, relevantly for present purposes, he has only a relatively limited record for offences of violence, comprising charges of assault and assault occasioning actual bodily harm committed in 2008, and assault committed in 1994.
The offender gave evidence before me, during which he spoke of the assistance he gave to Mr Jones in the days following the offence, as Mr Jones began the process of recuperating from his injuries. The offender was not challenged on this evidence. I accept that it is indicative of some degree of remorse on his part.
Disposition
The Crown Prosecutor submitted to me that a sentence of imprisonment was the only appropriate disposition having regard to the objective seriousness of the offence and the nature of the injuries occasioned to the complainant. I have accepted this submission. However having had regard to the offender’s subjective matters and to the features of the offence, particularly the fact that it occurred spontaneously in response to sustained provocation of the offender in his own home, I have reached the view that the term of imprisonment I impose should be suspended.
In relation to the offence of causing grievous bodily harm, the offender is convicted. I sentence the offender to 12 months imprisonment, reduced to 10 months on account of the plea of guilty. I order that this sentence be suspended immediately upon the offender entering a Good Behaviour Order for a period of 3 years, with that order to include a condition that the offender complete 200 hours of community service work.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 23 October 2015 |
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