DPP v Nash (a pseudonym)

That charge arose from an allegation that he had struck a young woman with whom he had been in an intimate relationship to her face after pulling her hair. I will give her the pseudonym of Ms Preston. Ms Preston and the offender went to an empty house where they spent some time together. At one stage they began to amuse themselves by pretending to fight each other. They ended up pulling each other’s hair. Count four, the count for which I must sentence the offender, involved the offender striking Ms Preston to her face.

It is necessary to analyse the jury’s verdicts in order to establish more precisely the facts on which I am to sentence the young offender.

Another count on the indictment, count three, was a separate offence of aggravated common assault, this being based on the allegation that the offender had pulled Ms Preston’s hair. He was found not guilty on that count.

At trial, the offender admitted to both pulling Ms Preston’s hair and striking her to her face but suggested that these acts were done in self-defence.

It was the prosecution case that the sequence of events was this: the offender pulled Ms Preston’s hair and, in response, she pulled his hair, after which he struck her to her face.

It was the defence case that the order of events was this: Ms Preston pulled the offender’s hair because she was cross with him, particularly because he was spending too much time looking at his phone, after which he pulled her hair in self-defence, and, when she continued to pull his hair, he struck her in self-defence.

I told the jury that if the sequence of events was as relied on by the prosecution, then no question of self-defence arose for either count three or count four. Given that they acquitted the accused on count three despite him admitting that he pulled Ms Preston’s hair, the jury must have found that the sequence of events was as proposed by the offender.

This means that I am to sentence the offender in relation to count four on the basis that he struck the face of his intimate partner and that he was not acting in self-defence when he did so.

In turn this could be either because he did not himself believe that it was necessary for him to do what he did in order to defend himself, or because his actions were not a reasonable response in the circumstances as the young person perceived them.

It is not necessary for me to decide on which basis self-defence was negated as whichever alternative is the correct one, it makes no difference to the result.

And on whichever version, the offender’s actions were a response to having his hair pulled by Ms Preston.

The offender is a young man with a very limited criminal history. He was recently dealt with in the Children’s Court for an offence against the Education Act 2004 (ACT). That offence carries only a fine as its maximum penalty. The offender received a dismissal under s 17 of the Crimes (Sentencing) Act 2005 (ACT). His upbringing, and in particular the challenges he has faced in his life so far, are eloquently set out in a letter written by his parents. He is an only child who had many advantages in his life until problems started appearing when he became the subject of relentless bullying at school. He was diagnosed with ADHD as well. The combination of those factors led to him misbehaving. But with the unwavering love and support of his parents, he is starting to get back on track. There was a hiccup caused by the uncertainty surrounding the present proceedings. Had the offender been convicted of the most serious offence against him, he may have received a custodial sentence. The prospect of this happening was a significant destabilising force on the offender’s path to rehabilitating himself and easily explains the matter that was dealt with most recently in the Children’s Court.

Although this offence involved a single blow in response to provocation, it is still necessary for me to assess the harm caused by the offender’s actions. Ms Preston gave evidence that the pain was “8 out of 10” and that it was almost as though she was going to pass out. A photograph taken of her face by police showed a small amount of redness to her cheek. So, Ms Preston was physically harmed to that extent, but such harm would have been transient.

The offender spent one night in custody which was no doubt a salutary experience for a 15-year-old boy. Indeed, a letter written by his parents tendered today confirmed what I would have already expected to have happened. He was subject to bail conditions for over 18 months. These matters are further justification for the leniency of the sentence I will soon impose.

Because he is a “young offender”, I am required to apply the principles to be found in Ch 8A of the Crimes (Sentencing) Act 2005. I have done so. However, I have to say that such was the minor nature of this offence that I would have imposed the same sentence on an adult.

As is apparent from what I have already said, I have considered the matters in s 17(3) of the Crimes (Sentencing) Act 2005. I have decided that it is not appropriate to impose anything other than nominal punishment on the offender.