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LOUKAS-KARLSSON J: Introduction

1. On 11 May 2023, Mr Aiden Paff (the offender) entered a plea of guilty to the offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 13 years’ imprisonment.

2. The offender came before me for sentence on 8 August 2023. Agreed facts

3. The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.

4. On 10 December 2022 at about 1:06am, the victim and his friend were in Canberra City. A friend of the victim engaged in conversation with a group of males unknown to him. An individual of African descent was in this group of males. The friend of the victim said words to the group of males to the effect of, "shut up you black cunts". At this time, the victim was standing nearby scrolling through his mobile phone.

5. As the conversation between the friend of the victim and the group of males deteriorated, a physical altercation started between them. In an attempt to stop the fight, the victim began to pull the males off each other. During the fight, the victim attempted to pull a male off the friend who had made the offensive comment. This male was the offender.

6. The offender turned to confront the victim. The victim attempted to back away from the offender while holding his arm out motioning him to stop in a non-confrontational manner. Using a closed right fist, the offender punched the victim to the left side of his head. This immediately caused him to drop to the ground, hitting his face on the concrete pavement. The victim believed he lost consciousness for a short amount of time as a result of this punch.

7. The victim remained lying on the concrete as the offender returned to the physical altercation that was still ongoing. The victim raised his head and slowly attempted to regain his feet. The offender returned to the victim and used his right leg to kick the victim once in the head with a ‘wound up’ strike before returning to the altercation a second time.

8. The victim got to his feet and reapproached the offender and the other males in the group. The offender said to the victim words to the effect of, "mate you have had enough already just leave it".

9. The victim left the location and, a short time later, received treatment from ACT Ambulance Services for his severe injuries. Police obtained 10 photographs of the injuries to the victim’s face.

10. Later that day, the victim attended the Canberra Hospital Emergency Department, where he presented with the following symptoms: (a) Swelling to left eye lid; (b) Multiple abrasions and swelling over nasal bridge; (c) Abrasions over nose, cheek and chin; (d) Swelling to upper lip with small laceration; (e) Left frontal tooth chipped; (f) Superficial grazes to both hands; (g) Palpable step deformity left inferior orbital rim (bottom of eye socket); and (h) Hypoesthesia (loss of sensation) left V2 (maxillary nerve) distribution.

11. Medical diagnoses of the victim’s injuries included: (a) “A comminuted left zygomaticomaxillary complex [cheekbone and eye socket] fracture as follows:” (i) “Comminuted left orbital [eye socket] lateral wall and floor fractures, the later involving the infraorbital canal [opening for the infraorbital nerve].” (ii) “Lateral orbital wall fracture demonstrates medial displacement by 4 [millimetres].” (iii) “Severely comminuted left anterior and lateral maxillary wall fractures, the latter demonstrating up to 6mm medial displacement.” (iv) “Medially impacted and comminuted left zygoma temporal process fracture.” (b) “Associated left maxillary haemosinus [blood in the sinus].” (c) “Emphysematous changes overlying the left globe [air in the soft tissues around the left eye].”

12. On 14 December 2022, the victim attended the City Police Station to report the above incident. Police conducted a Record of Conversation with him in relation to the incident.

13. On 16 January 2023, police disseminated a media release in an attempt to identify the male involved in the assault. On the same day, the offender attended the Tuggeranong Police Station. The offender identified himself to police.

Victim Impact Statements

14. Three Victim Impact Statements (VIS) were tendered including a VIS of the victim, the victim’s mother and his sister.

15. The VIS of the victim included the following: Since the night of my assault my life has changed dramatically. From losing friends, relationships, losing work, missing out on work and to now moving 2300km away from home so I can get work and feel more comfortable and finally start enjoying life again. After the assault I [lay] in hospital and contemplated my life and if it was really worth living anymore laying there with multiple breaks in my head, I was scared I would never be the same. Leaving the hospital as my sister picked me up she could barely look at me, got back home to Wagga [Wagga] and my nieces [looked] at me all they could do was cry when they [saw] me. That hurt my heart and soul. My mum as well couldn’t look at me without being sick, that same day I asked my nephew what he wanted for Christmas and he said all I want is for you to get better. After surgery was Christmas I couldn’t eat properly for weeks causing me to lose about 10kgs, before the assault my favourite place to be was the gym and I couldn’t do that for months. I couldn’t even go see my family because of the pain I was in and I didn’t want them to see me like that. I spent Christmas in bed. I was put on prescription pain killers and was taking Panadol and Nurofen every day just to get by. I lost jobs and tonnes of work because I was in [too] much pain or ‘unreliable’ and lost a few builders in the process as I’m a sub-contractor plasterer. I started getting dreams that I was getting bashed that happened for a month straight, it ended in me barely sleeping at all because of them. I went to the doctors and they said I have PTSD from the assault, and they put me on 2 different types of medication so I could sleep and when I started taking that I was bedridden. I didn’t work for weeks and once I did start working again I could never wake up on time. My body just wanted rest and I had no motivation to do anything. I slowly started losing trust in my friends and just people in general. I haven’t been able to go out at nights since because I just don’t feel safe. I used to enjoy going to Canberra a fair bit to enjoy the nightlife and now I just sit at home and do nothing. I feel like I can’t switch on anymore, even the simple things of just making conversation with people now is hard and I never had that problem before I was quite the social butterfly. I feel out of it all the time and I just don’t feel like myself anymore and I think all of my family can see that and I hate it. I just want to go back to the same bloke I was before the assault, but I feel like now after eight months I have to let go of who and what I was and concentrate on becoming a better version of me with what I have to work with. I have currently moved 2300kms away from my home and am trying to get into the mines. I have a mate looking after me until I get in but I’ve left my life behind in Wagga [Wagga] and life being a plasterer. It makes me sick knowing how far my family is away but I need to do it, to find myself again as I lost myself in the midst of everything.

16. The VIS of the victim’s mother included the following: … I’m [the victim]’s mum, he’s my baby boy and he was 25 at the time of the assault. The morning I got a phone call in December last year from my son where I could hear he was in hospital by the background noise my heart instantly dropped and I felt physically sick with what he told me he had broken bones in his cheek and eyes and he needed surgery, I was over 500 kms away on holiday and all I wanted to do was get to him[.] Luckily my daughter got to him earlier than what I could [have] and what [proceeded] after that was surgery the 23rd December where we had to travel to Canberra from Wagga [Wagga] where we live pay for [accommodation] for two nights, costs for ambulance and pre surgery [appointments] also and the injuries were horrific and I was worried things could go wrong with surgery[.] I suffer horrible anxiety to this day [about] my son leaving the house and if the huge crack that is in his [skull] that they said they couldn’t do anything with as it would be major surgery. I worry [about] any lasting medical problems that he could have due to his injuries and just as importantly I worry [about] his mental health and anxiety being a male he doesn’t say much and that always worries me. I wouldn’t wish this on any mother the fear that I’ve had to deal with. He could [have] easily died that night and this still haunts me every day. Thank you for taking the time to read what I’ve written.

17. The VIS of the victim’s sister included the following: Arriving at work on a Saturday morning new to my job, I did not expect to get a phone call from our mum that my brother had been severely assaulted in Canberra and was lying in a hospital bed alone, needing surgery and he was uncontactable as his phone was also smashed in the assault so we had barely any idea of his injuries or what had happened. Instantly receiving this phone call I felt physically sick to my stomach. My little brother had been hurt by someone who would never dream of doing to someone what was done to him. My mum was 8 hours away and there was no way I was leaving him to be alone. I had to leave my new job to drive 3 hours away to find my little brother in a hospital bed. When I first [saw] him my heart sunk. He was [unrecognisable]. The anger and sadness I felt inside that someone could do this to him. Not long after I arrived he was discharged from hospital with a plan to come back for surgery. Knowing he was leaving the hospital terrified me, with head injuries, a cracked skull and broken bones in his face. The fact that anyone thinks it’s okay to just assault someone on a Saturday night for the fun of it is beyond me. The trauma he now has to live with from this. The trauma our whole family has from this now and the fear. Now when he leaves the house we all have to worry that if this was to happen again what it could potentially do now he has plates and screws in his face. The fear of knowing he could [have] died on that Friday night. On the Friday night, after the assault, [the victim] was half unconscious walking around Canberra with no idea what had happened. When recounting his steps with our mum, they found exactly where he was picked up by the ambulance. There was blood all over the footpaths which was another traumatic time for my family. He was ‘lucky’ to be on the phone with one of his friends who figured out what had happened and where he was and called the ambulance. If it wasn’t for her who knows where he would be right now. Christmas was spent with [the victim] having surgery 2 days prior. So I had to make up a lie to my 3 children ([the victim]’s nieces and nephew) about why his face looked the way it did. I still remember my daughter bawling her eyes out when she [saw] him, she was 5 at the time and she was too scared to look at him. I remember my son saying Mum all I want for Christmas is [my uncle] to feel better. [The victim] wasn’t able to enjoy Christmas lunch with us because he couldn’t eat. He is now needing dental work from the assault to fix his teeth and has to see an ongoing counsellor due to his trauma and the things that he is still trying to deal with to this day. This happens [too] often and it needs to stop. I shouldn’t be sitting here writing this! Families shouldn’t have to live their life because of someone who thinks they have the right to lay their hand on someone else. I could go on about this for days but I am just SO grateful that my brother is alive and we found the offender so we can just justice for what he done to him. Thank you for taking the time to read what I’ve written.

18. The Court recognises the serious and long-lasting effects of this crime on the victim and acknowledges the significant impact that this offence has had on him and his family (s 33(1)(f) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)).

19. Counsel for the offender acknowledged on behalf of the offender “the pain and suffering of the victim and his immediate family”. Counsel for the offender submitted to the Court that the offender had read the Victim Impact Statements outlined above and acknowledged “his responsibility as the cause of the pain and suffering and the profound effect his actions have had on others”. This acknowledgment by the offender is similarly reflected in the Pre-Sentence Report (PSR) outlined below.

20. This offence should never have happened. The victim has suffered. His family has suffered. The repercussions are long term. The Court acknowledges the three eloquent and dignified Victim Impact Statements.

Objective seriousness

21. The prosecution submitted that the objective seriousness for the offence of recklessly inflicting grievous bodily harm is to be assessed by reference to the conduct of the offender and associated degree of recklessness, together with the nature of the grievous bodily harm to the victim: DPP v Crutchett [2023] ACTSC 193, R v Bandy [2018] ACTSC 261; R v Sharma [2016] ACTSC 180 (Sharma); R v Myles [2017] ACTSC 194; R v Butters [2019] ACTSC 143. The circumstances of the offending are also relevant: McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439 at [37].

22. In Sharma, Elkaim J said at [18]-[19]: …[A] single punch, especially when made to a victim’s head so that he is rendered unconscious and falls to the ground, has the potential to result in the most severe of consequences. This is especially so when the incident takes place on a city footpath where there is a strong likelihood of the victim striking his head on a very hard surface. …

23. The prosecution correctly submitted that this offending “involved more than a single punch”. This is clear from the agreed facts outlined above at [4․]-[13․]. The offending conduct involved a punch to the head of the victim, causing him to fall to the concrete pavement, followed by a kick to the head of the victim while he remained on the ground. The prosecution submitted this level of violence is “quite severe”.

24. It is appropriate to take into account the resultant injury, loss and damage as a result of the offending under s 33(1)(e) of the Sentencing Act. The injuries suffered by the victim are outlined above at [10․]-[11․] and detailed in the report of Dr Emily Rushton dated 12 July 2023, tendered by the prosecution and before me in evidence.

25. The report of Dr Rushton notes that she did not examine the victim, instead providing an opinion based on “documentation provided, [Dr Rushton’s] clinical experience, qualifications and relevant medical literature”. The report includes the following.

26. The victim was admitted to Canberra Hospital on 23 December 2022 for “open reduction and internal fixation” surgery under general anaesthetic for his facial fractures. The victim required treatment for post operative pain on 29 December 2022, and further treatment for a possible post-operative infection on 20 January 2023. The victim was documented to have seen a psychologist on 10 February 2023 regarding the psychological impacts of the assault.

27. Dr Rushton noted that the victim will have permanent scarring, and the permanent presence of metal plates and screws in the affected facial bones as a result of the surgery required to treat his facial fractures. The victim is likely to have permanent scarring as a result of the laceration to his inner upper lip, as well as permanent scarring as a result of his facial abrasions. This will result in permanent alteration of the facial appearance. Without dental treatment, the victim will have permanent alteration to the appearance of the left upper front tooth as a result of the tooth fracture. The victim reported altered sensation to the left side of the face as a result of his injuries, and Dr Rushton indicated it is a possibility that this sensory loss will be permanent.

28. Counsel for the offender acknowledged in written submissions that the seriousness of the injuries is accentuated by their permanency.

Reason for the offending and degree to which the offence was a result of provocation

29. The Court can consider the “reason for the offending” under s 33(1)(v) of the Sentencing Act. As is outlined in the facts, a fight occurred between a friend of the victim and a group of individuals to which the offender was a party. The offender assaulted the victim after he attempted to intervene to break up the fight. It is unclear why the offender chose to assault the victim, although the Pre-Sentence Report discussed below refers to the offender “bottling up” his emotions during a stressful period in his life. 30 ․ The prosecution correctly submitted it is clear from the facts that the fight that occurred immediately prior to the victim being assaulted was sparked by a racial slur made by the friend of the victim to an associate of the offender. The prosecution submitted that this does not mitigate the seriousness of the offending that was perpetrated against the victim. This is because the victim played no part in making the racial slur and was attempting to diffuse the altercation at the time he was assaulted. The prosecution submitted that, as it was not the victim who made the slur, there was no relevant provocation. However, the prosecution correctly acknowledged it was in the context of that occurring and that this context can be taken into account. I take the context into account in assessing objective seriousness. 31 ․ Counsel for the offender submitted that it was not “wanton in the sense of other offending that the interaction between the two groups was generated by the offensive comment”. Counsel for the offender submitted that the comment by a member of the victim’s group initiated the interaction between groups and led to the altercation. Counsel for the offender did not seek to lessen the offending, rather to place the offending in the context of the interaction between the groups. Counsel for the offender distinguished R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 (Loveridge) as the case before me was not a case where somebody “was going through a city looking and intending to cause injury”. As indicated above, I will assess the objective seriousness in the context in which the offending occurred.

30. The prosecution submitted that, when considering the conduct of the offender, the degree of recklessness and the nature of the injuries, the instant offending falls above the mid range of objective seriousness. Counsel for the offender submitted the offending falls within the mid range.

31. It must be stated that references to low, mid range and high range are not necessarily helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]. I accept the features identified by the prosecution and defence as set out above. These are permanent injuries and involved the offender both punching and kicking the victim in the face.

32. Nevertheless, an assessment of the objective gravity of an offence has always been an essential part of the sentencing process. Taking into account the matters discussed above, I assess the objective seriousness as mid range. I have considered the wide spectrum of offences of this nature: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

Subjective circumstances

35. In evidence before me is a PSR dated 27 July 2023 prepared for the offender.

36. Counsel for the offender also tendered a letter from Menslink dated 17 January 2023 and a letter from Directions Health Services dated 12 April 2023 which were prepared for proceedings in the Magistrates Court for which the offender was sentenced on 28 June 2023. Counsel for the offender intended to rely on them as “background” to this offending.

Pre-Sentence Report dated 27 July 2023

37. The PSR includes the following in relation to the offender’s subjective circumstances.

38. The offender had been known to Corrective Services since March 2023, when a PSR was prepared in relation to offences before the Magistrates Court. The offender remains subject to two Supervised Bail Orders. The PSR reported that on 26 June 2023, the offender was subject to breach action after he signed an Offender Declaration Form on 22 June 2023 acknowledging he had recently consumed cannabis. The offender’s compliance in relation to Intensive Correction Order (ICO) supervision has been positive.

39. The offender described his childhood in positive terms, and informed the PSR author he was raised by his mother and stepfather. The offender reported no contact with his biological father, as he left the family home prior to the offender’s birth. The offender stated his stepfather was the only father he had ever known and described his relationship with his parents as supportive.

40. The offender stated his parents had moved from their family home in the ACT and relocated interstate. He reported their relocation had placed strain on him as he had enjoyed a close relationship with his parents. The offender and his now ex-partner had also resided with his parents for a period of time. Subsequent to this, the offender and his ex-partner had purchased an apartment together where they resided until the relationship broke down in March 2023. He reported limited contact with his ex-partner.

41. The offender stated he enjoyed a supportive and positive relationship with his long-term friend and the friend’s grandparents, with whom he currently resides. He described them as pro-social influences and stated he had known them for over a decade.

42. The offender reported completing Year 10 and exited the formal education system in Year 11 to commence working in the trade industry as a carpenter. He reported engagement in consistent employment since leaving school, aside from a two-week period when he left his former civil construction job after suffering an allergic reaction. The offender stated he had been working for an asphalt company on a casual basis since March 2023 and described working six days per week, eight to 13 hours per day. The offender stated he would commence full-time, permanent employment with the company once his Court proceedings had finalised.

43. The offender described his financial circumstances as strained due to costs associated with legal fees and continued mortgage repayments.

44. The offender reported some acquaintances had been involved in historical criminal activity, however, informed the PSR author that his main friendships are pro-social. The offender’s mother confirmed she is familiar with the offender’s companions and stated they had been a positive influence on the offender since childhood. Furthermore, the offender’s current co-residents appear to be a pro-social influence and are seemingly supportive of the offender.

45. The offender identified problematic alcohol use in recent times. He attributed his increased consumption to ongoing life stressors where he would drink as a coping mechanism. He recalled drinking beer after work and on weekends, averaging approximately six to seven standard drinks per day. The offender informed the PSR author he recently ceased alcohol use and now manages stress through engagement in exercise. The offender acknowledged that alcohol consumption had been connected to his offending behaviour.

46. The offender claimed he no longer considered his alcohol use to be problematic, and noted he last consumed a small amount of alcohol at a work function rather than drinking alcohol on a consistent basis after work. The offender claimed he could easily remain abstinent from alcohol use.

47. The offender stated he commenced smoking cannabis at 15 years of age and reported using the substance to aid sleep. He reported self-medicating his sleep issues, as he would often struggle with not knowing his biological father. The offender stated he previously attempted to reduce his cannabis use, however, noted his cannabis use initially increased after his relationship breakdown in March 2023. The offender stated his cannabis use decreased significantly after he moved into the family home of his pro-social friend, and stated he could easily refrain from cannabis use for the purpose of an ICO, as the stringent nature of an ICO would require the offender to remain abstinent from substance use.

48. Service records indicated the offender was subject to urinalysis and oral drug testing nine occasions between 29 December 2022 and 11 July 2023. He returned a positive result for cannabis on five occasions. The offender also claimed an inability to provide urinalysis samples on 22 June 2023 and 11 July 2023.

49. The offender reported engagement with Directions ACT to address his alcohol and cannabis use. A support letter from Directions ACT dated 12 April 2023 indicated the offender approached their service for counselling support on 6 March 2023, and his intake appointment was completed on 21 March 2023. The offender commenced his initial Alcohol and Other Drug focused counselling session on 4 April 2023 and attended two subsequent weekly appointments. The offender also attended Directions ACT’s Alcohol and Other Drug Program on 1, 21 and 28 April 2023, for which he received a certificate of completion. The offender’s last engagement with the service was in April 2023.

50. The offender disclosed engagement in exercise in his spare time. He reported historical participation in softball and baseball in the ACT, however, stated he no longer plays sport due to employment commitments.

51. The offender denied any past or current mental health issues. He reported a desire to engage with a counsellor to address reoccurring thoughts regarding his biological father. A Canberra Health Services letter dated 1 March 2023 indicated the offender was seen on 27 January 2023 at the Canberra Hospital in relation to a suicidal crisis in context of a relationship breakdown. He was discharged home with an unsuccessful follow-up from the Mental Health team. The offender was again seen by Mental Health Services on 26 February 2023 while at Canberra Hospital regarding relationship stressors. The recorded impression of treating health professionals was that the offender presented with emotional dysregulation on background of substance misuse and maladaptive coping mechanisms. The offender declined further contact with the Canberra Hospital.

52. The offender’s mother stated the offender’s mental health stressors had not been a frequent issue and described his recent mental health ‘troubles’ as situational. The offender reported an intention to engage with EveryMan Australia regarding anger management issues which were apparent during the commission of the current offence before the Court. On 10 March 2023, EveryMan Australia confirmed the offender had contacted their service and was currently on their waitlist for counselling. EveryMan Australia indicated that the offender did not attend his appointment on 24 July 2023. This was addressed in counsel for the offender’s oral submissions discussed later in this judgment at [102․].

53. A support letter from Menslink dated 17 January 2023 indicated the offender had engaged with their counselling service to address personal issues and behaviours he identified as concerning, namely: emotion regulation, communication, anger management, and to develop better habits. On 20 June 2023, Menslink confirmed the offender commenced engagement with their service on 28 March 2023, and had attended a total of three counselling sessions.

54. The offender stated he was under a lot of stress immediately prior to the commission of the current offence, and recalled an inability to openly discuss his life stressors during that period. He reported the commission of the current offence occurred due to him “bottling up” his emotions, which “all came out”. The offender stated he did not feel good when he reflected upon his behaviour, as the injuries the victim sustained were significant. The offender stated he felt guilt around the impact he had upon someone's life and put himself into the shoes of the victim and realised how difficult it must have been for them. Conclusion to Pre-Sentence Report

55. The PSR author opined that the offender is a 24 year old man who appears to have a supportive familial unit, stable accommodation and a strong work ethic as evidenced through a consistent employment history. The PSR author described it being apparent that the offender would self-medicate during times of stress by frequently smoking cannabis and consuming alcohol. The offender nominated not knowing his biological father as a potential trigger for his substance use issues and recognised the need to address mental health, anger management and alcohol and drug issues through counselling and/or programs.

56. To his credit, the offender demonstrated initiative and engaged with appropriate counselling services to address his mental health, emotional and personal issues and his alcohol and other drug use. His compliance with Corrective Services for the purpose of ICO supervision has been positive, and his engagement for the preparation of this PSR was also satisfactory. The PSR author expressed concern that the offender would need to continue to engage with services to benefit from interventions addressing mental health, anger management and alcohol and other drug use.

57. The offender was assessed as suitable for a low level of intervention commensurate with the assessed risk. The PSR recommended that, in the event supervision is imposed, a further condition that supervision be only for the period deemed necessary by ACT Corrective Services be included, and appropriate referrals to other agencies may be made.

58. As per s 90 of the Sentencing Act, the offender was assessed as suitable for a community service work condition.

59. Finally, the offender has been assessed as suitable for an ICO and has signed an undertaking to comply with all the obligations of an ICO. Corrective Services suggested the following factors associated with the offending should be targeted if an ICO is made: (a) Alcohol and other drug use; and (b) Mental health, including anger management.

60. The PSR recommended the following additional conditions be attached to the ICO: (a) No alcohol use; (b) Continued engagement with appropriate interventions to address alcohol and other drug use, mental health and anger management, and their link to the offender’s offending behaviour. Menslink letter dated 17 January 2023

61. A letter from Menslink dated 17 January 2023, prepared in the context of Magistrates Court proceedings, was also tendered in support of the offender and was before me in evidence.

62. The letter includes the following: … [The offender] has engaged with our counselling service to address personal issues and behaviour that he has identified as concerning for him. [The offender] has attended three sessions to date commencing 28/3/2023 and has made a definite commitment to ongoing sessions to help him improve himself and his circumstances. [The offender] has specifically asked for assistance with emotion regulation, communication, anger management and developing better habits. [The offender] has also joined a drug and alcohol program with Directions and applied for an anger management course with EveryMan. … Directions Health Service letter dated 12 April 2023

63. A letter from Directions Health Service dated 12 April 2023, also prepared in relation to the offences dealt with in the Magistrates Court, was tendered in support of the offender and was before me in evidence. The letter included the following: I am writing to support [the offender]’s upcoming court hearing and stipulate the facts of his engagement with Directions Health Service. [The offender] approached our service on 6 March 2023 to have his one-on-one counselling support from our service. His intake assessment was completed on 21 March and [he] had his very first Alcohol and Other Drugs (AOD) focused counselling session on 4 April. He has also expressed that he is going to do our ADAPT course too. ADAPT is [a] harm minimisation and information focused course and comprises [of] A, B and C models. It runs every Friday. [The offender] starts his course on… Friday, 14 April. So far, [the offender] has attended twice his weekly counselling sessions and his next session is booked on 20 April. As I am employed with Directions as an [alcohol and other drug] specialised counsellor and his allocated counsellor, we have focused on learning about different emotions and feelings, and how to manage them. He has expressed that he would like to focus on the [underlying] issues which are [embedded] into his [alcohol and other drug] related behaviours and improve his overall mental health wellbeing. [The offender] has established some good routine during the day and is focusing on his physical health, such as eating healthy and going to [the] gym every day. And working seven days a week too. We are taking a holistic approach and working… to merge his emotional management and regulation to his physical health improvement.

64. Overall, counsel for the offender submitted that the offender is in full employment, has pro-social supports and has demonstrated a commitment to rehabilitation. Remorse

65. The prosecution submitted there was no evidence of remorse shown by the offender towards the victim.

66. Counsel for the offender submitted the comments of the offender in the PSR reflect remorse and acknowledgement of the impact and consequences of his actions: He stated he felt guilt around the impact he had upon someone's life and put himself into the shoes of the victim and realised how difficult it must have been for him.

67. Counsel for the offender submitted that the “illustration of acknowledgement of responsibility that comes through the plea of guilty and through expressions of remorse that have been made”, as well as the offender’s post offence commitment to rehabilitation, should be taken into account on sentence.

68. Parties agreed that restorative justice had not occurred, but noted this, practically, may not be something that could occur at this time due to the victim now residing a considerable distance away from Canberra. Counsel for the offender indicated the offender would be “open to” participating in Restorative Justice.

69. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: Mun v The Queen [2015] NSWCCA 234 (Mun) at [36], Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ, Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [34] and [44], R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Mun at [37], Van Zwam v The Queen [2017] NSWCCA 127 at [6], [110].

70. Accordingly, only limited weight can be ascribed to the remorse expressed.

References

71. Two references authored by mentors of the offender were tendered in support of the offender for proceedings in the Magistrates Court. As above, these references are relied upon by counsel for the offender while recognising they were prepared for different proceedings.

72. A signed reference under the hand of a mentor of the offender is dated 25 April 2023 and includes the following: …I am writing a reference in regards to [the offender] … … [The offender] has already given up drinking alcohol and smoking marijuana. ... I know [the offender] from meeting him at family functions on a couple of occasions when he was invited by his friends who are members of my family. I have had discussions with him about the matters that have led to his being before the Court. I was the leader of a Catholic Church Organisation for 25 years and involved in pastoral ministry which often led to mentoring men and counselling many. In 2009, I began employment as a case manager with St Vincent De Paul. I worked with Samaritan House which provided crisis accommodation for men over 18 years. I worked at Ainslie Village, Oaks Estate with men suffering mental health issues. I transferred to Catholic Care and have worked mainly with men in difficult situations. I was employed at MINOSA which provided medium term accommodation for homeless men. I also worked on a Throughcare program with men released from AMC. My last role before retirement was working on a Justice Housing Program with men and women released from AMC into accommodation managed by Catholic Care. My extensive experience working with men, including many who have been involved in recovering from drug and alcohol abuse, violence, incarceration etc. places me in a situation where I can comment on [the offender] from the perspective of how I see his potential. My view is that he is showing good intent to make changes. He has built on this by engaging with support services. He is seeing Menslink, Directions and waiting to undertake anger management with EveryMan. He is also trying to look after his physical wellbeing. The Court will make a determination about his sentence. However, it seems to me that if he is incarcerated it may dissolve his present determination and act as significant discouragement. Too many men on the cusp of change in their lives at a crucial moment have lost their determination when faced with what many call “boring and unproductive time” in jail.

73. Another signed reference under the hand of a mentor of the offender dated 25 April 2023 includes the following: … I have come to know [the offender] since his teenage years, as he has been a friend to my daughter during their schooling years and beyond. … I am saddened to learn that [the offender] chose to commit these criminal offences, which have placed him in this position. … [The offender] has stopped using all substances he previously used, and he tells me that, while he assumes full responsibility for his actions, he is aware substances have a profound effect on him, causing him to make decisions inconsistent with his typical character. Currently, I am a senior mental health clinician in acute care. I have extensive experience supporting people who have substance abuse issues. Considering this event and my familiarity with [the offender], I affirm that he is a young man who has tremendous potential and believe that a penalty such as a period [of] detention would not serve to benefit [the offender], or the community. …

74. I take these references into account on sentence, in particular concerning rehabilitation discussed further at [96]-[105]. Criminal History

75. The offender has a limited criminal history. Of relevance, the offender was convicted of offences of assault occasioning actual bodily harm and damage property which occurred on 25 December 2022, shortly following the commission of this offence. The offender was sentenced on 28 June 2023 in the Magistrates Court to 12 months and 3 months respectively, to be served by way of ICO.

76. Counsel for the offender correctly submitted that the above offending was relevant, given it occurred a short time after the offence currently before me. Counsel for the offender conceded that this would be relevant to the assessment of the offender’s prospects for rehabilitation (T20.23-26). Counsel for the offender pointed to the subjective circumstances of the offender during this period of time, outlined above at [37․]-[64․]. Specifically, counsel for the offender suggested that the close temporal relationship between these two instances of offending reflected that the offender “was not coping with life stresses”, that he was utilising cannabis and alcohol, that he struggled in terms of his mental health, including presentations at the Canberra Hospital, and that his relationship of three years was “under pressure” and has since ended. Counsel for the offender properly pointed to the PSR as supporting the submission that these factors contributed to the offending.

Plea of guilty

77. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [44] noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].

78. The offender entered a plea of guilty in the Magistrates Court. The prosecution correctly submitted the plea saved the cost and expense of a criminal trial and saved the victim from having to give evidence.

79. Counsel for the offender submitted that the offender presented to the police following the media release and entered a plea at an early stage, following representations. Counsel for the offender submitted that the offender should be entitled to the full discount available under s 35 of the Sentencing Act. I agree.

80. Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate. Time in custody

81. The offender has spent no time in custody referable to this offence.

Comparable cases

82. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]: [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

83. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

84. I was referred to the following cases by the prosecution: (a) R v O’Brien [2022] ACTSC 86 (O’Brien) In this matter, the offender entered a plea of guilty to a charge of recklessly inflict grievous bodily harm. Both the offender and the victim were at a pub and had drunk to excess. The offender took offence to the victim repeatedly passing threats and abuse and punched the victim, who was seated and defenceless. The victim fell to the ground where the offender continued to punch the victim a further seven or eight times. The victim broke his left mandible, which required the insertion of four screws and a plate, as well as suffering several broken teeth. The offender had compelling and unique subjective factors, including the loss of multiple family members in tragic circumstances. The offender had also relocated to Sydney after the offence to act as a carer for his sister. Elkaim J sentenced the offender to nine months and two weeks’ imprisonment. Taking into account the 50 days already spent in custody, the sentence was suspended upon entry into a Good Behaviour Order, recognising that imposing an ICO would have required the offender to return to the ACT. (b) R v Daniel (No 2) [2021] ACTSC 117 The offender in this matter was found not guilty at trial on a charge of recklessly inflict grievous bodily harm, however conceded a prior plea of guilty to the statutory alternative charge of cause grievous bodily harm. The offending occurred in the context of tension between two groups of people at a licenced premises over the use of pool tables. The offender was standing next to the victim when he turned towards him, grabbed the front of the victim’s shirt and punched the victim to the left side of his face. He then struck the victim in the throat area. The victim immediately fell backwards to the ground, unconscious. The victim suffered a severe traumatic brain injury and was hospitalised for 75 days. The offender was otherwise of good character, had some alcohol use issues, however alcohol was not a factor that contributed to the offending in a significant way. The offender was assessed as a low risk of reoffending. The offender was sentenced to three years and six months’ imprisonment to be served by way of ICO, with an additional 500 hours of community service work within 30 months. (c) R v Vardai [2020] ACTSC 297 In this matter, an assault occurred during the course of a verbal argument between two people under the influence of alcohol and drugs. The offender punched the victim once, knocking the victim to the ground and causing the victim to suffer a fractured jaw, an occipital scalp haematoma and a middle traumatic brain injury. The offender entered a plea of guilty to the charge of recklessly inflicting grievous bodily harm. The offender had no criminal history, an unremarkable upbringing, full-time employment, and no ongoing alcohol or drug use problems. The offender was sentenced to 13 months and 15 days’ imprisonment to be served by way of ICO, with an additional condition of 100 hours of community service work to be undertaken within 12 months. (d) R v Lacey [2020] ACTSC 241 The offender in this matter entered a plea of guilty to the offence of causing grievous bodily harm. On his way from one nightclub in Civic to another, the victim in this matter asked a group of males for a lighter for his cigarette. The offender was one of these males. Another member of the group teased the victim by holding a lighter very close to his skin. The victim pushed the lighter away. A group member slapped the victim in the face and the offender pushed him from behind. The offender followed the victim and subsequently punched him in the jaw with his left hand. The victim immediately lost consciousness and fell to the ground. The victim suffered a moderate to severe traumatic brain injury, a left epidural haematoma, a left temporal subarachnoid haemorrhage, a hairline base skill fracture and a temporo-occipital scalp haematoma. The victim was hospitalised for 25 days and, for a period after, could not drive, live independently or work. The victim lives with the ongoing impacts of an acquired brain injury. The offender was subject to a GBO for an assault at the time of offending, was a “binge drinker” and suffered from anxiety for which he was medicated. The offender was sentenced to 27 months’ imprisonment to be served by way of ICO, with an additional condition that he undertake 240 hours of community service work within 12 months. (e) R v Chapman [2018] ACTSC 57 The offender in this matter was charged with recklessly inflicting grievous bodily harm. The offender struck the victim on the face without warning or provocation, causing the victim to stumble backwards and fall to the floor. The victim suffered a broken jaw. The offender had a criminal history including violent offences. The offender was sentenced to 15 months’ imprisonment, wholly suspended upon the offender entering into a GBO for 30 months. The GBO included a condition to complete 300 hours of community service work. An ICO was deemed unsuitable due to the offender living interstate. (f) R v Myles [2017] ACTSC 194 The offender in this matter was intoxicated and attended a licensed premise in Civic with his then partner and three others. At about 2:00am, the offender's partner greeted the victim, leaning over to give him a quick hug. The offender mistakenly concluded that the victim was his partner's former boyfriend. The offender believed that his partner and the victim had “cheated on him”. The offender raised his right arm and punched the victim in the lower right jaw with a closed fist. The victim’s jaw was fractured in two places and required surgery. The victim also suffered psychological injury. The offender at the time was 23 years age, did not have a significant criminal history, however, did have a history of substance abuse and was voluntarily undertaking intervention for alcohol misuse. The offender was sentenced to 1 year and 10 months’ imprisonment to be served by way of an ICO, with an additional condition to undertake 249 hours of community service work within 12 months. (g) R v Sharma [2016] ACTSC 180 The offender in this matter was intoxicated and had a verbal argument with two men outside a convenience store in Braddon in the early hours of the morning. The offender threw a punch at the victim who was standing with his hands in his pockets. The punch hit the right side of the victim’s jaw knocking him unconscious and causing him to fall to the ground and hit his head. The victim suffered a fracture of the lower jawbone requiring hospitalisation and surgery. The victim also suffered psychological injury. The offender was 20 years old and the offence was described as ‘out of character’, including the fact that he had no criminal antecedents and demonstrated remorse. The offender was sentenced to 27 months’ imprisonment, suspended after nine months upon entry into a GBO for the remainder of the sentence. The sentence was unsuccessfully appealed for manifest excess.

85. The prosecution correctly submitted there is a wealth of case law in relation to alcohol fuelled violence and the need for deterrence, suggesting the facts of the above cases are all “reasonably similar” to the facts of this case. The prosecution noted the comparable cases largely involve the imposition of ICOs for offences of this nature.

86. I was not referred to any comparable cases by counsel for the offender. The offender distinguished these facts from Loveridge in oral submissions, as discussed in this judgment.

General deterrence

87. In Loveridge, the NSW Court of Criminal Appeal considered the sentencing principles that should apply to alcohol and drug affected offenders who commit wanton acts of violence in public. The Court observed at [103]: Other decisions of this Court have emphasised that violence on the streets especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell (2007) 177 A Crim R 94 at [29].

88. The prosecution correctly submitted that, in this matter, there is no direct evidence that any of the parties were intoxicated immediately prior and during the fight. However, the fight resulting in the injuries to the victim occurred at approximately 1am in the morning in the Civic precinct in the direct vicinity of a number of licenced premises.

89. The NSW Court of Criminal Appeal’s comments are pertinent in that street violence involving young men, both involving alcohol and, in that context, requires general deterrence to be a prominent consideration for the sentencing court to take into account and I do so. See also O’Brien at [18] and Sharma at [35].

Statutory and other relevant considerations

90. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

91. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim and rehabilitation are important sentencing considerations.

92. It is important to acknowledge the significant harm done to the victim, and to hold the offender accountable for his actions. The Court, as well as higher Courts, have emphasised that the principle of denunciation serves as an optimal means of protection of the community: see R v AEM [2002] NSWCCA 58 at [92].

93. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

94. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Given the serious, violent nature of the offending, the injuries to the victim and the need to deter such behaviour in others, only a term of imprisonment is appropriate. Counsel for the offender conceded the s 10 threshold has been crossed.

95. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO, including community service work as a condition. I accept this submission. In my view, full-time custody is not appropriate in this case. I discuss this further below.

Rehabilitation

96. Rehabilitation is an important consideration having regard to the offender’s relative youth. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]: Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

97. The prosecution properly submitted that rehabilitation is an important purpose of sentencing for this Court to consider when fashioning a sentence for the offender: see Saga v Reid [2010] ACTSC 59 at [91].

98. Counsel for the offender pointed to the comments in the letter from Menslink dated 17 January 2023 before me in evidence, discussed at [61․]-[62․]. The letter also states the following: [The offender]’s commitment and determination to change and grow is palpable, authentic, and admirable. A custodial sentence would be detrimental to this process and leniency is requested.

99. Counsel for the offender submitted it was rare to have prospects of rehabilitation described in “such real and positive terms”. Counsel for the offender submitted there is “palpable action” in terms of addressing the factors that contributed to the offending.

100. Counsel for the offender emphasised the offender’s young age, being currently 24 years of age: R v Tonna (No 2) [2020] ACTSC 362.

101. With regard to prospects of rehabilitation, I expressed some concerns at the sentence hearing in relation to comments made on page 5 of the PSR, which states as follows: On 21 July, [the offender] indicated he scheduled an appointment with EveryMan Australia for 24 July regarding anger management interventions. On 26 July, EveryMan Australia stated [the offender] did not attend this appointment, nor did he respond to the text message sent to the nominated telephone number confirming his scheduled appointment.

102. In oral submissions, counsel for the offender explained that the offender’s parents had moved interstate and his relationship of three years had ended, as discussed earlier. The offender remains committed to the mortgage payments of a property purchased with his former partner. The offender has had extended periods without a car, without the assistance of his parents and it was suggested the offender missed the above appointment due to “a combination of all those factors, together with work commitments which take him all around the territory and indeed out to Bredbo at the relevant time”. Counsel for the offender submitted this was “not a reflection of a middling attitude towards his rehabilitation”. Counsel for the offender informed the Court that plans to organise another appointment are ongoing.

103. Counsel for the offender submitted that addressing the offender’s anger management, alcohol and drug use and mental health should be the “foundation” of the sentence imposed by the Court. Counsel for the offender submitted the weight placed on rehabilitation should be significant as the offending can only “take the opportunity that would be afforded to him… to grow as a person and ensure this never happens again”. Counsel for the offender submitted this was best guaranteed by way of ICO.

104. On the evidence before me, there is real potential for the offender’s rehabilitation.

105. Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19].

Intensive Correction Order Assessment Report

106. The offender has been found suitable for an ICO as outlined on page 6 of the PSR. Pursuant to s 11 of the Sentencing Act, the Court can sentence the offender to a term of imprisonment to be served by way of intensive correction, provided the sentence is less than 4 years imprisonment.

107. The offender is currently subject to an ICO imposed by the Magistrates Court on 28 June 2023. The prosecution submits that s 80 of the Sentencing Act does not preclude the offender from being sentenced to another ICO for this offending as he is not currently serving a suspended sentence. The offender is not subject to any community service work conditions in relation to the ICO imposed by the Magistrates Court.

108. The offender has also been assessed as suitable for a community service work component consistent with s 80E of the Sentencing Act. Counsel for the offender submitted that, alongside his work commitments, the offender has capacity to engage with a community service condition of this nature.

Sentence

109. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. Both the short and long-term consequences of being a victim of this offence must be acknowledged and are acknowledged by the Court.

110. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender. It is clear there should be a term of imprisonment. This is a serious matter with serious repercussions for the victim of this offence.

111. In my view, taking all matters into account, the appropriate sentence for the offence of recklessly inflicting grievous bodily harm is 40 months of imprisonment, reduced to 30 months on account of the plea of guilty.

112. It is appropriate in light of the offender’s prospects for rehabilitation that the sentence be served by way of ICO.

113. As I noted in R v Elson [2020] ACTSC 264 at [85], it must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a “significant punishment, coming second only to a term of full-time imprisonment”: R v Srna [2018] ACTSC 337 at [13]. The content of the ICO will require strict adherence and, if not followed, could result in a period of full-time custody.

114. Further, it is clear that conditions are appropriate to support the rehabilitation of the offender. Orders

115. I make the following orders: (1) On the charge of recklessly inflicting grievous bodily harm (CC2023/928), contrary to s 20 of the Crimes Act 1900 (ACT), Mr Aiden Paff is convicted and sentenced to 30 months’ imprisonment commencing 15 September 2023 and ending 14 March 2026. (2) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment is to be served by way of Intensive Correction Order. (3) In addition to the core conditions of the Intensive Correction Order, the offender is subject to the following additional conditions: (a) Continued engagement with appropriate interventions to address alcohol and other drug use, mental health and anger management, and their link to his offending behaviour. (b) A community service condition requiring him to undertake 300 hours of community service work in 30 months, commencing 15 September 2023.

I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 15 September 2023

************** Amendments 20 September 2023 Replace “three years” with “30 months” Paragraph: [115(3)(b)]